District Court of New Zealand : Speech

THE WAITAKERE FAMILY VIOLENCE COURT: A MORE FOCUSED APPROACH

Judge David Mather, 22 October 2005

I welcome the opportunity to talk to a large group of professionals practising in the area of family violence about an initiative we are undertaking at the Waitakere District Court. The programme for this conference includes a wide-ranging consideration of the diverse aspects of family violence, and I hope my contribution adds to the discussion.

A 24 hour internet survey published in last week’s Sunday Star Times asked the question : Should the Courts treat cases of domestic violence differently to other forms of assault. The result was 25% agreement and 70% disagreement. It will not surprise you when I say that Judges don’t make decisions according to the results of such public opinion surveys. We do however try to take into account the general concerns of the public, whose confidence the Courts must retain. If this survey suggests that domestic assaults should be treated no less seriously than other assaults, I entirely agree. There is, however, a case for taking particular account of the special features of violence which occurs in a domestic context. It is that belief which underlies the initiatives at the Waitakere Court in recent years.

The Waitakere Family Violence Court has received some media attention in the last year or two. This has given an incomplete picture only of the work of that Court. It has not explained how this initiative is attempting to improve process and outcomes for criminal prosecutions for family violence offences. I hope to provide a more comprehensive picture today.

All criminal prosecutions are dealt with in accordance with strict legal procedures. Prosecutions for family violence are, in that sense, like any other criminal prosecution. All the procedural safeguards and requirements must be met. The community would not expect anything else. Serious issues are involved and the liberty of the individual is often at stake.

In recent years however there has been a growing perception, not only by Judges but by many others involved with family violence, that the traditional approach fails to take full account of the particular issues and dynamics involved in family violence offending. Specifically:

(a) Safety concerns for victims require close scrutiny when bail is being considered, particularly immediately after an incident;

(b) Victim and offender will often still be in a relationship or will resume a relationship shortly after an incident;

(c) The pressures on victims not to follow through complaints and charges are more evident than with other criminal prosecutions;

(d) The lengthy delays often associated with criminal prosecutions work against successful outcomes;

(e) Traditional sentencing options often fail to address the real issues for both victim and offender.

Judges have also been concerned at the repeat nature of offending in a family violence context, suggesting that conventional sentencing practices have been ineffective deterrents. While recidivism is a feature of criminal offending patterns generally, it is particularly concerning when one victim (usually a partner or former partner) is the object of repeat offending, and some offenders accumulate convictions for domestic violence offending against a number of victims/partners.

These concerns, as well as the high failure rate for family violence prosecutions due to the refusal or unwillingness of complainants to give evidence, led to a new approach at Waitakere. In the early 1990’s Judges Coral Shaw and Russell Johnson took steps administratively to ensure that family violence prosecutions were disposed of in a much more timely way.

Coupled with that was the co-ordination of a strong network of victim support organisations under the network of WAVES (Waitakere Anti Violence Essential Services). This two-pronged approach resulted in immediate benefits. Victims were supported throughout the difficult period from the incident to disposal of the case, and the long delays previously occurring were significantly reduced, resulting in a much improved prosecution rate. The available evidence indicated the success rate for such prosecutions increased from around 30% to 70%.

These developments led to the establishment of a pilot Family Violence Court in 2001. This followed a consultation process involving all relevant stakeholders, including Judges, police, Court staff, defence lawyers, probation and the victim services groups. That pilot has now become an established feature of the Waitakere District Court. Let me describe some of its essential features.

Those arrested for family violence will, if held in police custody, appear in Court the next Court day. If bailed by the police they will appear in the next Family Violence Court which is held each Wednesday.

At that first appearance the Court will consider a bail application (if the defendant has been in custody) or the terms of bail if the defendant has been on police bail. Standard conditions routinely imposed are a separate residential address and non-association with the complainant.

At first call the defendant will not be entitled to enter a not guilty plea (or elect trial by jury if that option applies). This is an important part of the process. It prevents instinctive knee-jerk pleas of not guilty prior to receiving proper legal advice and proper consideration of the charge or charges. It also allows for the emotions of the incident, which may have occurred less than 24 hours earlier, to subside.

The police are encouraged to provide prompt disclosure of the usual documents, and defendants urged to either apply for legal aid or obtain their own counsel without delay. Defendants are remanded from the initial appearance, either immediately following arrest or at the first Family Violence Court appearance, for one to two weeks. At that second appearance they are expected to enter a plea.

Frequently defendants will, at that hearing, enter a guilty plea. If they are inclined to enter a not guilty plea, at that stage a procedure is undertaken which is akin to what are known as status hearings in respect of other criminal charges. An enquiry follows into the nature of the charges, the prosecution evidence, and the defences advanced by the defendant. Lists of previous convictions are also considered. Where appropriate the Judge may give a sentencing indication if the defendant were to plead guilty. That is likely to extend only to indicating either a community-based sentence or imprisonment.

This process often results in a guilty plea, either to the charges as laid or amended charges. Disputed facts may also be reviewed. Care is taken to ensure that wherever possible the views of the victims as to the appropriate charges and the facts alleged in support of them are taken into account.

When it comes to sentencing the Court will adopt one of a number of options. There may be enough information before the Court to enable sentencing to occur on the day the guilty plea is entered. Alternatively, a stand-down report from a probation officer may be sought, enabling sentencing to occur later the same day, or possibly within the next few days.

In more serious cases, particularly where the defendant has previous convictions, or there are other personal or family issues which need further consideration, a full probation report will be sought. Sentencing will follow some weeks later.

Another option following a guilty plea is to adjourn the case for two or three months, to enable the defendant to undertake an anger management programme, and/or drug and alcohol counselling or some other programme, on a voluntary basis. This option may be adopted where the defendant is seeking a discharge or other lenient sentence, based on their willingness to address the issues promptly and without compulsion by way of Court order.

Two difficulties can arise. First the defendant may not have the means to pay for the programme. Secondly when the programme is not undertaken, the Court often has difficulty assessing the reasons and the genuineness of the defendant’s commitment. The failure to honour such a commitment will result in sentencing taking place many months after the events, and its effectiveness is accordingly much reduced.

When it comes to sentencing for family violence offences, the protocol applied in the Waitakere Family Violence Court makes it clear that all sentencing options are available. These extend from discharges without conviction where the criteria for that sentence are met in minor cases, through to imprisonment for serious and repeat offending. The range of sentences in between include an order that the defendant come up for sentence if called upon, supervision with conditions to undertake appropriate programmes, and community work.

The District Court in its criminal jurisdiction can also make a protection order against the defendant in favour of the victim. That is an order normally made in the Family Court. However there are situations where both victim and defendant agree to a protection order being made as part of a criminal prosecution. Because of its consequences, particularly in relation to children and the penalties for breach, such an order would not be made unless the Court was satisfied that the defendant and victim both had proper advice.

This outline of the way the Family Violence Court works indicates the many different issues and options, as well as the complex and often changing dynamics which have to be taken into account throughout the process. While every case is different, we are striving for consistency as far as possible. This calls for a commitment from all participants, including the police, defence counsel, the victim services agencies, the Probation Service and the Judges. At Waitakere meetings are routinely held involving these stakeholders in an effort to try and develop that consistency of approach.

There are several stages in the process which require particularly careful attention. Let me refer to these and illustrate them with examples from our experience at Waitakere. The first is the period immediately following the incident and the arrest of the defendant. The safety of the victim and minimising the pressures on the victim are a priority. These factors may result in the defendant being remanded in custody for the initial week or two following the incident. If bail is granted, careful attention is given to the conditions.

I recently dealt with a case where a defendant with a long criminal history and gang associations was charged with a serious domestic assault including the threat of sexual violence. The victim impact statement available when the defendant first appeared in Court recorded her strong belief that she would be at serious risk of further violence or intimidation if the defendant was granted bail. He was remanded in custody for a week.

At the second appearance a lengthy opposed bail hearing took place. An updated victim impact statement from the victim recorded her view, that day, that she would not feel safe unless the defendant were released on bail and able to protect her. She was present in the back of the Court with their baby. Prior to this arrest the defendant was on bail with strict conditions for other non-family violence charges.

In support of the bail application, counsel for the defendant drew to my attention the fact that the complainant had failed to give evidence in support of a previous complaint of domestic violence against the defendant. I had real concerns as to why the victim had now changed her mind about what would keep her safe. The whole context strongly suggested pressure, if not threats. It was my view, reading between the lines in the second victim impact statement, that her initial fears were more reliable than her later views. The defendant was remanded again in custody. His subsequent appeal to the High Court for bail was unsuccessful.

The second critical stage of the process is when a defendant is inclined to deny the charge and enter a not guilty plea. There may, of course, be a genuine defence which counsel for the defendant will want to pursue. Responsible counsel will properly insist on defending such cases. In many cases however other reasons underlie the denial, including a tactical approach based on the likelihood of a victim not pursuing a complaint over a lengthy remand period. It is not unknown for counsel to intimate a not guilty plea, and the defendant from the dock, when asked to confirm the plea, to indicate that he really wants to plead guilty. A negotiated approach at this stage can often be productive.

A man appeared in the Waitakere Court this month facing charges involving two victims. There were three charges of breaching a protection order in favour of his former partner, and a charge of male assaults female and intentional damage in respect of his current partner. At his first appearance he was remanded in custody for one week. At second appearance his counsel indicated pleas of not guilty to all charges.

The Judge was unwilling to grant bail in the absence of any change of circumstance. As the defendant was leaving the dock to return to the cells, the Judge sensed an opportunity to reconsider the issues. Both complainants were present at Court with support. This was the last case in the day’s list. The defendant and his counsel indicated a willingness to discuss the charges.

The Judge had the benefit of reports from both the victim adviser and the community victim support workers for both complainants. They identified the defendant’s need to address his problems with anger and his drug dependency. His current partner was prepared to continue the relationship if these concerns were properly addressed. The former partner and mother of the defendant’s three children likewise needed ongoing contact with the defendant in relation to their children.

The facts set out by the police in support of the charges were discussed and, with input from the victims, changes were made. The defendant indicated a willingness to accept responsibility for his behaviour. He then pleaded guilty to all charges. He was convicted and remanded for a stand-down probation report and sentence the following day. In light of the developments bail was no longer opposed. The next day, with the benefit of that report the defendant, who was already undertaking a sentence of community work on other charges, was sentenced to supervision with conditions that he undertake programmes to address the problems referred to.

The process followed in that case is, regrettably, seldom possible given a typical Family Violence Court list of 50 or more cases.

A third critical phase occurs at the point of sentencing.

Sentencing offenders convicted of domestic violence can be a challenging balancing exercise. The Sentencing Act prescribes the purposes of sentencing, which include holding offenders accountable, instilling in them a sense of responsibility for their actions, denouncing unacceptable behaviour, taking account of the interests of victims and deterrence. Also included are reintegration and rehabilitation of the offender. At times these sentencing imperatives can work against each other.

Repeat or serious offending calls for stronger denunciation, and where more lenient sentences have previously been imposed, a sentence of community work or imprisonment will often be justified. However removing an offender who is still supporting his family, both financially and in practical ways, by imposing imprisonment or even a community work sentence can itself increase the stress on the complainant and family. In many cases victim impact statements note the victim’s wishes in this regard. They also emphasise the importance for the victim that the offender take effective action to address an anger management problem, a drug or alcohol addiction or some health need. A difficulty arises in cases where sentences have been previously imposed to address just these issues, with no commitment by the offender. A further such sentence can be seen as an inadequate response to offending which is often quite serious.

Where charges are denied, the pressure on victims, particularly if they are still in a relationship with the offender, can be very stressful. This is particularly so when defended hearings cannot be scheduled for many months following the entry of a not guilty plea. The Practice Note issued by the Chief District Court Judge in December 2004 provides for defended hearings to be scheduled no later than six weeks after the case is set down for hearing. Regrettably, that time frame is not achievable in many Courts at present, including the Waitakere Court.

Even with strong support networks victims will often refuse to give evidence when the case comes to hearing. If married to the offender they cannot be compelled to give evidence. Even if compellable , Judges are reluctant to force unwilling complainants to testify. In those circumstances the prosecution will generally fail, and justice may not have been done. There may however have been other developments outside the Court process.

In a recent case at Waitakere a 22 year old woman refused to give evidence against her father who was charged with threatening to kill her. For cultural and religious reasons he was unable to accept the relationship she had formed with a young man. She attended Court with two supporters. She told me, under oath, that she was having no contact with her father, was no longer concerned that he would cause her any harm, and she wanted nothing to do with him. She did not want him convicted of the offence he was charged with. In turn he told me he wanted nothing to do with his daughter. While the family estrangement was regrettable, it was clear that forcing the complainant to give evidence, even under threat of contempt proceedings, was inappropriate and unnecessary in the circumstances. The charge was dismissed.

The proposed changes to the laws of evidence will significantly change this situation by allowing the Courts to receive evidence of complaints by victims at the time of the offence, even if they are unwilling to testify in person at a later hearing.

Court and police statistics show some 3500 call-outs for police for domestic violence incidents in Waitakere in the last year. There were some 475 arrests for the main categories of domestic violence assault in Waitakere in the same period, as well as 275 prosecutions for breach of protection order. Other centres report comparable statistics. Trends are difficult to identify. What is clear is that domestic violence is still a major concern throughout the country.

The question must be asked as to whether or not the approach to domestic violence offending in a specialised criminal Court such as at Waitakere and Manukau is any more effective than the Court process for other offences. Unfortunately no evaluation of the Waitakere Family Violence Court has yet been undertaken, although further efforts are being made to set up an evaluation project. Statistical data as to the number and nature of charges and the outcomes is of limited value. Longitudinal studies will be necessary to establish with any reliability whether re-offending rates, or even the level of reported family violence incidents, reduce as a result of this particular legal process. The impact of other initiatives in the community will also have to be taken into account.

Anecdotal evidence however suggests that a co-ordinated and focused approach to domestic violence which can occur through a dedicated Family Violence Court has real benefits. The needs of victims are more consistently and reliably identified and addressed, from the time of the incident through to the disposal of the resulting criminal charges. Lawyers representing those charged with domestic violence offences are expected to focus more professionally on the real issues and the family dynamics, rather than engage in tactical and adversarial behaviour which has been a traditional feature of the criminal Court process. The credit given to defendants who accept their responsibility for domestic violence is routinely emphasised by Judges in the Family Violence Court throughout the Court process.

A well-supported and focused Family Violence Court also fulfils an important public role. It can clearly demonstrate that the Courts and the legal process treat domestic violence seriously. The Court processes themselves, together with the work of the many agencies which work to reduce the incidence and negative consequences of domestic violence, all help shape public attitudes and, one hopes, standards of community behaviour.

The theme of your conference is "Courageous Practice in Family Violence: A Call to Action". Many of you are engaged in important work which is making a difference in this difficult area. You know better than me the corrosive effects of domestic violence, including the inter-generational consequences. The criminal Courts also have an important role to play. Having said that, experience suggests that the impact of Court processes and sanctions in changing behaviour can be over-stated. Changing public attitudes and a culture which tolerates domestic violence is no easy task.

I commend the hard work so many of you are doing in this challenging area. I can assure you that the Judges who have the responsibility of dealing with family violence in the Courts are striving to become better informed and more effective in the part we play in addressing the serious problem of domestic violence in our community.