'Til the violence ends - Episode 4: Coercive control - Law for Community Workers

Episode Transcript
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Hayley (00:00):
When you look at the case that shocked the nation,

(00:02):
the case of Hannah Clarke, therewere lots of things that were
going on, and her family said inthe inquest, we'd go to the
police and they would say thatit's not a crime to stop her
from teaching a gym class. It'snot a crime that he wouldn't let
her wear the color pink. It'snot a crime that he needed to
know where she was all the time.Those singular acts of their own

(00:22):
weren't crimes. And so it'sthose build up of lots of acts
over a period of time createdand curtailed the freedom of
Hannah Clarke and perpetratedupon her type of intimate
violence that New South Waleshas said is now a criminal
offense in its own right.

Yasmine (00:45):
Welcome to Law for Community Workers. This is
episode four of our series 'Tilthe Violence Ends, where we
share insights from experts inthe domestic and family violence
space. In this episode, Bridgettakes a deep dive into coercive
control with criminal lawyers,Helen Shaw and Hayley Dean. This
episode was produced on thelands of the Gadigal people, and

(01:07):
we pay our respects to Elderspast and present As we share in
education today, may weacknowledge Aboriginal and
Torres Strait Islander people asthe first storytellers,
lawmakers and educators. As areminder, this podcast is
general information only andcan't be relied on as legal
advice. It's accurate at thetime of posting, but may have

(01:29):
changed if you're listening at alater date. If you or someone
you know needs legal assistanceabout a particular situation,
start with our team at LawAccessNew South Wales via web chat at
legalaid.nsw.gov.au or call 1300888529.

Bridget Barker (01:45):
Welcome Hayley and Helen to the podcast.
Today's episode will focus onthe topic of coercive control.
But before we get into thattopic, I'd just ask you both to
please introduce yourselves andlet our audience know a little
bit about the work that you do.

Hayley (02:02):
Well, Hi. My name is Hayley Dean. I'm a solicitor
advocate in criminal law and anaccredited specialist in
criminal law. I've been workingwith Legal Aid New South Wales
for 16 years, and prior to that,I was a prosecutor for the state
and federal DPPs.

Helen (02:18):
My name is Helen Shaw, senior solicitor in the
indictable section of Legal Aidin Sydney. I've been a lawyer
since 1998 and Legal Aid since2003 practicing in predominantly
indictable criminal law matters.And I've also done a short stint
in private practice prior tocoming to Legal Aid.

Coercive control. How did we get here,
and why is there now a new lawthat tries to deal with a
pattern of behavior that amountsto coercive control? What's the
background to this?

Hayley (02:53):
Well, thank you, Bridget. It's actually not
called coercive control as apiece of law in New South Wales.
Its real name in the legislationis abusive behavior towards
current or former intimatepartners, and the way in which
this piece of legislation cameabout was actually as a result
of the study of lived experienceand statistics and a lot of the

(03:18):
work done with victim survivors,and also a lot of the studies of
domestic violence homicides,which produced a number of
different reports and found thatthe marker prior to a person
being killed in a domesticviolence homicide was the
existence of what is describedas coercive and controlling

(03:40):
behaviors.
So part of getting to understandhow we get to legislation in New
South Wales, and New South Walesis actually effectively the
first state in Australia thatcriminalised this behaviour, is
having a look at what existedbefore. And what existed before
in the law was described aswhat's called incident model for

(04:02):
domestic violence offending andcoercive control or abusive
behavior towards current orformer intimate partners
expanded this idea of domesticviolence to cover a course of
conduct or a pattern ofbehavior. And so an incident
model is when something'shappened on a specific day at a
specific time, like a punch inthe eye or breaking of a mobile

(04:26):
phone, that singular thing thathappened on that day, that
incident. But the study ofdomestic violence survivors
produced a large amount ofliterature and empirical
information that explained inthe majority of domestic
violence settings, the abuse isongoing, long standing and

(04:47):
constant, and it's that patternof behavior that is in many
ways, far worse than thesingular incident of domestic
violence. And so the work of alarge number of stake holders,
victims, representatives,Aboriginal and Torres Strait
Islander representatives,lawyers and the government
worked together over a period oftime to figure out a way to look

(05:11):
at this course of conduct, ofoffense, being a criminal
offense in its own right. Whenyou look at the case that
shockedthe nation, the case ofHannah Clarke, there were lots
of things that were going on,and her family said in the
inquest, we'd go to the policeand they would say that it's not
a crime to stop her fromteaching a gym class. It's not a

(05:31):
crime that he wouldn't let herwear the colour pink. It's not a
crime that he needed to knowwhere she was all the time.
Those singular acts of their ownweren't crimes. There was no
crime for that. And so it'sthose build up of lots of acts
over a period of time thatcreated and curtailed the

(05:52):
freedom of Hannah Clark andperpetrated upon her type of
intimate violence that New SouthWales has said is now a criminal
offense in its own right. So Iguess it's a very short way to
describe how we got here. We'veexpanded the concept of what
domestic violence can be in thecriminal law.

Thank you, Hayley. There's a quote that I
know you've both used in some ofthe education work that you've
done with community workers thatsays coercive control is a
pattern of behavior by which theautonomy of a victim survivor is
eroded through behaviors thatare psychologically,
emotionally, financially,sexually or physically abusive,

(06:33):
intimidating or violent. Andanother quote that says coercive
control is a form of domesticabuse and is a precursor to
domestic violence death. Can youtell us about that connection
between what's referred to inthat quote as coercive control
and domestic violence death?

Hayley (06:52):
Well, the studies that were quoted by the Attorney
General at the time when thisact was a proposed bill, they
lent on the data that had beencollected by the Domestic
Violence Death Review Committee,and the committee gathered up
the background circumstances of,I think it was about 119

(07:13):
domestic violence homicides overa period of time, finishing in
around 2019 for the three yearsprior, I think, from memory, and
they found that in all but oneof those cases, so that's like a
99% ratio, coercive controlhappened, and it happened at
quite an increasing level and atquite a proximate level, just

(07:36):
prior to the homicide occurringof the person. And so when
people die, there's many reasonswhy inquiries are conducted into
the deaths of individuals, andthese are led in the Coroner's
Courts, but they're also led by,in some instances, Royal
Commissions, and then in otherinstances, by a body like the
Death Review Committee, and theylook at the reasons, or the

(07:56):
ingredients into why certainthings keep happening that
result in people dying and thedata. When that inquiry was
made, it spoke, and it spokewith complete clarity that
coercive control is a precursorto domestic homicides. So the
government decided to dosomething about that.

The government has done something about it. Can
I ask either of you to speakabout what the law says in the
way that it creates a newoffence?

Helen (08:25):
Section 54d of the Crimes Act sets out the ingredients or
the elements of the offence thatthe prosecution must prove
beyond a reasonable doubt inorder to get a conviction for
this offence. So Section 54d thesubtitle of that is offence of

(08:47):
abusive behavior towards currentor former intimate partners. An
adult commits an offence if athe adult engages in a course of
conduct against another personthat consists of abusive
behavior. And B, the adult andother person are or were

(09:10):
intimate partners. And C, theadult intends the course of
conduct to coerce or control theother person. And D, a
reasonable person would considerthe course of conduct would be
likely in all the circumstancesto cause any or all of the

(09:31):
following, whether or not thefear or impact is in fact caused
one fear that violence will beused against the other person or
another person or two a seriousadverse impact on the capacity
of the other person to engage insome or all of the person's

(09:52):
ordinary day to day activities.And the maximum penalty is seven
years imprisonment.

The section refers to intimate partner. Is
intimate partner defined Helen?

Helen (10:07):
Intimate partner can be a de facto, can be a husband and
wife, or past de facto, orhusband and wife. It does not
include people in the household,or every person in the
household, however.

Hayley (10:26):
It can include same sex marriages. It doesn't envisage
parents and children, but itdoes envisage people who are at
least dating.

Helen (10:36):
So the definition is under in the legislation, under
Section 54c of the Crimes Actthat there is definitions for
intimate partner and alsodefinition of of adult in the
Crimes Act.

And Helen, when you spoke about the way that the
legislation is set out, youtalked about a requirement of
intent that the person intendsto coerce and control, so I
imagine that makes it slightlymore challenging to provide
evidence.

Helen (11:13):
Evidence - that's something that's really
important for somebody wantingto bring a charge or to go to
police with this. Collectingexamples which may prove not
only the actions, the comments,the words, the abuse, but also

(11:33):
those examples may helpdemonstrate what the person's
intention probably was or was orhelp draw inferences, because in
law, we deal with inferences.Sometimes the person doesn't
explicitly or specifically say,I intend to hurt you, or I

(11:58):
intend to deprive you of allyour earnings or I intend to do
something. They may not use theword intend or intention
explicitly, but you look at thebehavior around what's
happening. You look at the leadup, you look at the
consequences. You look at thewords around it, text messages,

(12:19):
emails, and to try to build whattheir intention must have been.

Hayley (12:27):
And another way to look at that is also from the
reverse, like when, when youlook at it as a non lawyer, when
a charge has intention as beingone of the ingredients that's
quite a higher level of proof.Whereas you know you can
accidentally hit someone with acar and still be at fault, we

(12:48):
don't have that level of proofthat you've accidentally
intimidated someone, you haveaccidentally controlled them. So
it's much higher than anaccidental level of fault. It's
also much higher than beingreckless as to the impact of
your conduct. So another levelof fault in in law is being

(13:08):
reckless as to what you'redoing. So I didn't I did what I
did, and I didn't care whetheror not it created a result is
the reckless standard. But thisoffence, this offence has the
standard that the person doingit has intended that their
actions will coerce or controlthe person that they're doing

(13:28):
them to in order to determinewhether or not that intention
has been carried out. The courtoften will, as Helen has
described, will look at thebehavior, and very often, the
behavior speaks for itself. Whenyou send someone a text message
saying, Get home or I'm going tohurt the bird or the dog, that

(13:51):
text message is very clearlybeing sent with the intention of
forcing that person to get home.There's it's quite a clear level
of intention that can beinferred from that behavior, but
the standard for this offense isintention, and one of the areas
that the lawyers debate aboutis, is that too high a standard?

(14:11):
Should it be reckless? Shouldit? But the legislature has
called it intentional offendingat this point in time, and we're
going to see how that plays out.

What about a defence to this new offence?
So that's section 54e of theCrimes Act, and which reads as

following, one (14:29):
in proceedings for an offence under Section 54d
subsection one is it is adefence if the course of conduct
was reasonable in all thecircumstances.

Hayley (14:43):
I guess a way to just figure out whether something's
reasonable is usually, is itnecessary? The question you ask
yourself. So the example quotedhere is that, let's say, for
example, there's a couple andthe relationships not doing so
well. People, and one person inthe couple is using the pooled

(15:04):
family funds to gamble and drinkand maybe possibly as well, so
the other person starts takingcontrol and being very
restrictive of when that otherpartner in the relationship can
access the funds, theoretically,that could be alleged as a form
of coercive control, but in thisspecific example, the potential

(15:29):
to raise a defence. It wasnecessary, it was reasonable in
the circumstances, because theywere gambling the house, and we
had nothing to live on, theywere just taking they were
emptying the account.Theoretically, you would hope
that the police would be awareof those circumstances before
filing a charge. Buttheoretically, if they're not,

(15:51):
there is that defense that'sprovided for within the
legislation.

Helen (15:55):
And Section 54e continues with subsection two, saying that
for subsection one, that thecourse of conduct was reasonable
in all the circumstances istaken to be proven if a evidence
adduced is capable of raising anissue as to whether the course
of conduct is reasonable in allthe circumstances, and B the

(16:19):
prosecution does not prove,beyond reasonable doubt that the
course of conduct is notreasonable in all the
circumstances. And typicallawyer fashion, we have two
negatives in the one sentence,which is a complete nightmare,

(16:39):
nightmare to translate, sointerpreters will probably have
a terrible time interpretingthat into other languages as
well.

Hayley (16:48):
That really explains for the lawyers, though, who bears
the burden of proving which sideof the argument. So if you if
you're raising that something'sreasonable in the circumstances,
and the prosecution can'tnegative that it wasn't
reasonable in the circumstances,then theoretically the defense
should hold but that's yet to beseen how that would be done, and

(17:11):
I can't really envisage a lot ofsituations where that's going to
happen, because there's thingsthat lawyers do before cases run
away at that level, where wewrite letters to the prosecution
to say, look, you've got you'vegot problems. Could you think
about withdrawing the chargehere? But when, when the
legislation was being debated,it was written into there as a

(17:31):
form of protection, particularlyfor people who succumb to being
over prosecuted certain groups,and it provides a tolerance or
an allowance for the possibilitythat a defense is appropriate in
certain situations.

What are the limits to this offense?

Hayley (17:47):
Well, there is a double jeopardy rule that applies. And
the best way to describe that isthat what happened before the
start date, which is the firstof July, that's you can't
prosecute things that havehappened before the first of
July, 2024 you might be able tobring them in as context
evidence or tenancy evidence.But what happened before the

(18:11):
first of July, 2024 is out ofbounds for being prosecuted. You
can only start the prosecutionfrom the date that the Act came
into force. So that's one limit,as Helen mentioned. Another
limit is this. This is not goingto apply to kids or people under
the age of 18. Another limit isit must be an intimate partner,
so you can't prosecute mum anddad. If you've had a you know

(18:36):
that they won't let you go out,and you must have had some level
of intimacy, although theintimacy is not defined by
sexual contact, so you don'teven have you don't have to be
in a sexual relationship to beintimate partners. In accordance
with the definition the doublejeopardy rule means that if part

(18:59):
of the conduct that's reliedupon by the prosecutor. So
taking your phone, signing youout of all your apps, taking
your money, if that part of theconduct is relied upon for a
different charge and is rununder a different charge, like a
a stalk intimidate, or a commonassault, and you beat that, or

(19:21):
you the person is prosecutedunsuccessfully, or to
conclusion, the prosecutioncan't then uplift that same
content and run it a second timein a coercive control
prosecution, so the prosecutorwill have to decide what content
they're running for each chart,for each charge, the coercive

(19:44):
control charge, and then theother specific incident based
charges, and you can't rely onthe same conduct for both sets.

So it's going to require a fair bit of careful
thought on the part of theprosecution as to

Hayley (19:58):
Definitely

What charges they place

Hayley (20:01):
It's and that's an important thing, because
coercive control ups the game indomestic violence charges, what
we've had up to date, generallycarried two years imprisonment.
Coercive control abusivebehavior towards current or
former intimate partners,increases the penalties to seven
years. So it really is a farmore serious charge, and that's

(20:24):
reflected by the bigger maximumpenalty.

What about changes to others, other
legislation as well? This, thereseems to have been a general
move towards recognising thispattern of behavior in other
contexts as well.

Helen (20:39):
Yes so the bail law has changed. The bail legislation
has changed. And so some somecertain offenses, including a
detain or a kidnap type offense,which carries a 14 year maximum
penalty that then becomes underthe bail legislation, show

(21:01):
cause, why your detention isjustified and why your detention
is not justified. And so thatcame into play. And if an
accused person is charged with ashow cause, domestic violence
offense, and the court decidesto grant them bail, they must be

(21:23):
subject to electronic monitoringunless the bail authority or the
court giving them bail issatisfied that the sufficient
reasons exist in the interest ofjustice not to impose The
condition that they areelectronically monitored.

Hayley (21:41):
I'd like to say that these changes came as a result
of the distress out of thekilling of Molly Ticehurst in
the Forbes area. The person inthat was the is the alleged
offender in her matter was, wasalready on bail, and for the non
lawyers who might be listeninghere, show cause is the loyal

(22:05):
way of saying, generallyspeaking, you really shouldn't
be getting bail. The startingpoint is no bail. And so you
have to show special reasons orspecial causes, why you should
be allowed to get over thatpresumption against you in the
very beginning, and so thegovernment has tightened up the

(22:26):
statistical chance for someonewith charges of this type
getting bail in the very firstinstance anyway. And the idea
behind that is, is that, again,it goes back to the risk to
domestic violence victims there,it's a high risk area, and they
should be protected.

Helen (22:46):
And the prosecution, who appears on the bail application
must consult with thecomplainant or the alleged
victim, and they must presentthat view on the bail
application to the court, theymust consult with the person.

Hayley (23:06):
And or their family as well. So yes, that's that's come
as a result of the concerns inthe Molly Ticehurst case.

Yeah, I guess it's really important for us to
mention and keep in mind thatthese are all real people who've
lost their lives and familieswho've lost daughters and
mothers as a result of thisbehavior. And yeah, just to keep
those real people front of mind,and that's why we're having this
discussion, and why there's beenchanges to the law.

Helen (23:36):
Yeah, and it's across all demographics, all socio economic
groups, all types ofsexualities, relationships,
cultures. It is not one culturealone. Domestic violence is rife
and domestic abuse is rifethroughout the community.

Hayley (23:59):
There's also been some changes to the Crimes Domestic
and Personal Violence and otherLegislation Amendment Bill. So
this is a a lot of the domesticviolence offending comes under
this Act. And over the course of2024 this act has been updated,
which is a normal thing.Legislation gets updated from
time to time because socialnorms evolve. So this

(24:24):
legislation originally came intoforce in 2007 and it's it's been
updated again, and the firstchange was a change to the
definition under Section 6A ofdomestic abuse. And domestic
abuse is now defined to includecoercive control. And what that

(24:45):
tinkering with that definitiondoes is that when an offense
under 54D occurs, it is given alittle set of brackets at the
end of the offence with theletters DV. Inside the brackets,
and when courts and lawyers andpolice see that, it defines how

(25:09):
that charge interacts with othercomponents within the legal
system. So if I'm looking at aperson, if I'm looking at their
criminal history on a bailapplication, I can see some
common assaults, but I can alsosee some common assaults
brackets DV, and I know thatthose common assaults relate to
domestic violence, and so I willthen go through and count how

(25:31):
many of those they have on theirhistory. And that interacts with
the submissions about risk thatI can or can't make on bail for
that person.
It also interacts with how AVOsare handled. So Apprehended
Domestic Violence Orders and thechanges to the Crimes Domestic

(25:51):
and Personal Violence Act havealso affected what's happening
with ADVOs Apprehended DomesticViolence Orders, so they've
actually created some newoffences relating to ADVOs, and
one of them is, is that you cannow have an aggravated breach of
an ADVO. And what that means isthat the person is breaking the

(26:15):
AVO or the ADVO intentionally,and they're breaking it
intentionally with the goalbeing that that causes harm or
fear to the person, so thatsometimes there would, we would
look at that as a far moreelevated level of criminality
than than, say, the kind ofbreach, which is perhaps there

(26:37):
was some contact. The contact ismerely just, you know, running
into each other in a shoppingcentre. But then there's the
type of breach where it's, youknow, sending messages of quite
hateful messages that in a textor which is another form of
contact that that potentiallybreach the AVO. And then also,

(26:59):
one of the other amendments is,is that you can now have a an
aggravated offense ofpersistently breaching the ADVO.
And what we see with thesepatterns of behavior is that
repetition is another form ofperpetration. So people who are
getting, you know, many, manymessages. They're not

(27:21):
necessarily threateningmessages, but they're just
repetitious messages in thecontext where there's an avo
that says no contact, thatpersistence, that harassment of
them, is a very and again, it'sanother elevated form of
offending. So these these typesof new offences, upped the

(27:42):
penalties to five years for thisoffence, for the persistent
aggravated breach, and threeyears for the aggravated breach
of an Advo it's another layerthat the government has put in
place with the aim of protectingvictims.

What's the new civil protection order scheme?

Hayley (28:00):
Well, in civil there's, over the last sort of eight
years, there's been a set oforders that have been in place
for people who say, for example,they've had terrorism offending,
or they've had child abuseoffending. And so there's been a
type of order that you could getplaced on offenders like that,
which will really putobligations on the individual,

(28:25):
what we call positiveobligations, like you must not
go near schools or or you mustnot hang out with other people
who are connected to an allegedterrorism group or a bike group.
And so they're now sort ofmirroring those kind of positive
obligations on domestic violenceoffenders. So if, if a person
has been a domestic violenceoffender multiple times, the

(28:47):
government can, or the policecan now say, You know what, you
keep coming back with the samething time and time again. We're
now going to put an order inplace that forces you to comply
with stuff, positive obligationsto really intervene in the
offending, and that can includethings such as reporting,

(29:09):
electronic monitoring, placerestrictions that are really
ongoing for a very long time. Sothat's, yeah, it's called a
serious domestic abuseprevention order, and there was
some final little amendments aswell, about that you can now
serve an avo electronically,which, up until that amendment,

(29:30):
had been a way that there was adelay between the court
announcing an avo and then thepolice going out to serve it on
a person in person. Soelectronic service has closed
that loophole.

So then the granting of a provisional AVO
can provide, in practical terms,a more immediate protection
because of that ability forelectronic service?

Hayley (29:54):
Yes.

An important factor in relation to this new
offence and other changes to thelaw is is evidence. And this
podcast series is directedtowards community workers and
support workers who are workingwith victims of domestic

(30:15):
violence and also possiblyworking with offenders or
alleged offenders, what is thesort of evidence and what are
the things that communityworkers can do to support the
clients that they're workingwith if they're trying to assist
them in terms of evidence andother other steps that they

(30:37):
might take that would be usefulto a client who comes to see
them?

Helen (30:42):
I think that just before I give a story that the domestic
abuse definition and types ofbehaviors that come under that
are things that have, as Haleytouched on earlier, have not
always been criminalised. Orevery time somebody went to the

(31:03):
police in the past, they gottold that's not a crime, we
can't charge them. They haven'tdone anything wrong. But with
the change in the definition ofor the new definition of
domestic abuse in the crimes anddomestic and personal violence
act. You know, we've got thingslike behavior that shames and

(31:25):
degrades somebody, behavior thatdestroys property. Well, that's
always been a crime, but it'sthere it is again, in the
definition of domestic abuse,trying to control where somebody
goes for spiritual ceremonies orcultural practices, things like

(31:46):
that, stopping somebody fromexpressing their cultural
identity, things like that. Workas community workers. If
somebody is coming to them andsaying, Look, these things are
happening to me, the communityworker can recognise, well,
actually, that is in thelegislation that is actually

(32:07):
criminal behavior by thispartner, by this other person,
and encourage the person to keepevidence, take notes, get
photos, that sort of thing. AndI'll just tell you about a case
that I had without obviouslyidentifying the person.

(32:29):
Sometimes police end up chargingthe true victim of domestic
abuse. And I had a femaleclient, young female client,
charged with murder. She hadkilled her partner with one stab
wound to the chest after he hadbeen throwing knives at her

(32:54):
while she was holding her child,and he had been verbally abusing
her, and just an hour prior tothe ACT causing death, the
police had been called byneighbors for a domestic abuse
incident by him. When policeturned up the hour earlier, she

(33:16):
had sort of told police, I'mokay. Nothing happened. I
tripped. I fell. So police didnot arrest him. They did not
remove him from the premises.They left. When police left, of
course, he started again.Continued the episode, and that
resulted in my client defendingherself and killing him, charged

(33:43):
with murder, exercised her rightto silence, which is everybody's
right not to talk to police, notto explain the self defense, and
not only self defense in thatvery moment, but the whole
defense and reaction

(34:11):
who had expressed shock that theperson that had died was the
male, not the female, becausethose neighbours had witnessed
him dragging her by the hairdown the driveway numerous
times. They'd heard yelling.They'd heard doors banging. Some
of them had had to help herearlier.

Hayley (34:34):
They had suspected it was going to be her probably.

Helen (34:37):
Yes, they thought they were shocked, because they
thought if anyone's going todie, it's going to be her,
because they've heard him,they've seen him. He's just
never been charged with thisbefore. And my client again,
young woman, Aboriginal womanwith a child to another partner

(34:58):
who was also abusive. And when Iasked her also going through her
background, was her fatherabusive in the home? Was her
abuse in the home? She deniedit, but I had a feeling that
there was more to this, becauseher father knew the deceased.
Her father knew the partner.There was a drug selling

(35:18):
relationship between father andpartner. That's how she got
introduced to the partner,because he was a friend of her
father, and I wasn't sure howthat friendship was based, but
it was based on drugs andeventually she opened up to me
and said, look, I told you thatmy father wasn't abusive in the

(35:38):
past, but that wasn't true, hewas. And I encouraged her to
speak openly, not only to me,that's great, but importantly,
also to the psychiatrist that Iwould be sending to assess her
with all the material, with allthe witness statements of past
abuses, with her medical recordswhere she had turned up to the

(36:00):
doctor on numerous occasionswith black eye bruises,
abrasions. She'd become pregnantto him and threats to the baby,
and she had covered up for him,gave the doctor some other
excuse of why those bruises werethere. Doctor made notes,

(36:21):
quoting what she had said. Sothose notes were then
potentially evidence in court ifshe ever raised prior domestic
violence as an issue. Well, thenwe have this problem where we've
got medical notes suggestinganother version for the bruises.
So she had to explain all ofthis, this pattern of covering

(36:43):
up for him, minimising hisbehaviour, defending the
perpetrator, in a sense, and ittook a lot of courage by her,
and it took many hours ofconferences of her gaining
trust, gaining courage to speakout. And in the end, the
prosecution encouraged andinvited her to make a statement

(37:07):
to the police, an interview tothe police, which is, of course,
a very dangerous thing, becausewe often do give advice to
clients - you've got the rightto silence.

Hayley (37:17):
Yeah, I've never, I've never encountered it so in many
years that I've been working soit's it's really extraordinary
that you were there with this.

Helen (37:25):
And it's terrifying sitting there listening and not
knowing whether, under thepressure of police officer
asking questions an experienceddetective, whether all those
hours that I've spent listeningto her story, whether she's
going to be consistent with whatshe's told me, which sounds very
much like a self defence,defence, and it sounds very much

(37:48):
like somebody who has been onthe brunt of domestic violence
for a very long time, startingas a child, where it becomes
normal for her as an adult, andwondering whether she's going to
be able to trust a maledetective as well, to be able to
tell him for the first time whatshe's told me consistently over

(38:12):
many months, she wanted mepresent with her while she spoke
to police, which then opened upanother legal hurdle of getting
the the special caution, whichis an additional caution very
much sounds like, what if youlisten to a British crime show,
what the British police -

Hayley (38:32):
They do. Yeah, that's it. I've seen that. I've
actually seen that on TV. Soyes, that that is your spot on
there, Helen.

Helen (38:38):
So anything that, more or less what you fail to say to us
can no longer be used in courtas part of your defence, so
either speak up now and tell useverything now, or don't try and
rely on it later in court. So wehad this situation where she had
this one chance of recordingeverything to the police, being

(39:02):
grilled by them in a policestation, and knowing that this
becomes evidence in court to beplayed before a jury, it was
very intensive and emotional.She needed a break. But at the
end of the several hours of thatrecording, the police
transcribed it as they do, andthen that was a copy was given

(39:24):
to the prosecution. We madesubmission that they withdraw
the charge on the basis that shehas a full defence of self
defence. It's a defence tomurder charge that she's, in
fact, the true victim here,defending herself and her son,
defence of another what she didwas legally okay and justified

(39:48):
under all the circumstances, andcompletely a reasonable response
is one stab wound was areasonable response to somebody
who's throwing knives at you andmaking verbal threats.

Hayley (40:00):
Yes, wow. In that context, in that context of a
history of domestic violencewitnessed by neighbours, etc,
that's so extraordinary.Absolutely extraordinary matter
to have worked on.

Helen (40:12):
So they did withdraw the charge five months after we put
in the request for them to doso. We had a trial date lined
up, and six weeks out fromtrial, they made the decision to
withdraw the charge. But that'san example of somebody that was
charged, who police charged atrue victim of domestic abuse,

(40:34):
of this constant domestic abuse,or everything he said to her,
the degrading comments heconstantly made to her, the
physical abuse, the excludingher from her friends, getting
jealous and controlling when shewanted to see her friends, all
of those kinds of behaviors wereperpetrated on her over months

(40:56):
and months.

Hayley (40:57):
It's actually thanks to your thoroughness that the story
came out with relation to thatclient. And that's probably the
little bit of the advice thatthe listeners might take away
from this, that it's it is, veryoften the story of the person
who is in the situation thatforms the majority of evidence
and and people might ask lawyerslike us, you know, how can we

(41:21):
gather evidence? Well, largelythe evidence will be what
happened and what you say hashappened, where you can get
evidence that matches up to whatyou say happened, that supports
your evidence. So we call thatas lawyers, things that
corroborate the account, thingsthat boost it. So there are some

(41:43):
really great ways that thatevidence can be supported or
gathered up. There's a couple ofapps online that help people who
are experiencing domesticviolence situations record
things that are occurring in aprivate and non trackable way,
so it can be locked away andhidden in a in a phone. One is

(42:04):
called the Arc app, and theother is called Empower You,
which is run by New South WalesPolice. And we don't, we're not
associated with those apps inany way.
But obviously keeping records inany form that support the story
of what is happening are thingsthat help so records might
include, you know, if, let'sjust say there's some abuse has

(42:25):
happened, and it's happened whenyou're driving through a KFC
drive through, and you will havea memory of what happened, and
you might have a photograph ofyour meal when you drove through
the KFC drive through on thatsingular occasion. And even
though you don't have aphotograph of the abuse that
happened or a recording of it,that memory is anchored by

(42:46):
taking that photograph on thatday, so things like that. But
then also, you might have directexamples, such as, you know, you
might have voice memos, youmight have text messages, you
might have some emails. Youmight have any photographs,
particularly if they'rephotographs of injuries after
something has happened. Youmight have bank records that

(43:09):
that show a pattern of moneybeing taken or money being
withheld. You might havemultiple mobile phones that have
been smashed, and you might haveto have gone back to the
telephone shop multiple times toreplace your mobile phone, and
then if that supports evidencethat the person has broken my
phone at least three times,you've got the record of having

(43:31):
to go and obtain a new phone.There might be records such as
someone claiming on your yourinsurance or making an
application for a loan or acredit card without your
consent. These are the kind ofpieces of evidence that they
breadcrumb and support theoverall story, the overall

(43:52):
narrative of the pattern ofabuse. So support workers are
really helpful, in a way, inassisting people that they're
working with gather those thingsup, you know, provide them the
reminder to to be able to gatherup those little clues and give
them to the police, or, ifthey're working with a domestic

(44:16):
violence lawyer, a domesticviolence lawyer specifically,

Thank you and thank you, Helen, for that
extraordinary story about yourclient. One aspect of that, I
guess, is misplaced victimloyalty. And Hayley, I think
you, you mentioned previouslythat that's something.

Hayley (44:35):
Yeah, it's really common. So support workers will
probably be, some of them willbe really across this that, you
know, there are psychologicalimpacts that people experience
when they've been the subject ofdomestic violence, and built
into the experience of of goingthrough it is the experience of

(44:55):
safety or behavior that supportssafety. So it's very frequent.
The case, that a victim survivorwill do things that to an
external party really just don'tmake sense, like withdrawing
their complaint or or, evenworse, making a false story that
when I you know I haven't beenhurt, I haven't been stalked, we

(45:18):
have a really supportiverelationship. We just want to
get back together. This is, thisis a storm in a teacup, and so
there's a phenomena calledVictim Support, or victim
identification with theperpetrator. And it's, it's
difficult to manage, because,you know, a large amount of
energy of working with victimscan sometimes, unfortunately, be
spent on assisting them to turnthe tables on the behavior that

(45:44):
has supported them having safetyin a domestic violence
situation, which is beingcompliant or being supportive.
So people who work with themneed that, that depth of
understanding that that's aphenomena, and alongside that is
the phenomena, as Helen touchedon of victim misidentification.
So victim misidentification isthis idea that victims can also

(46:07):
be people who are caught up inthe legal system when
predominantly they're the personwho, over time, has not been the
primary aggressor, and theprimary aggressor is the person
that the system is nowsupporting. The working
committee on coercive control ismonitoring the impact of this
possibility, because it reallypredominantly manifests. There's

(46:30):
a concern that it will manifestin Aboriginal and Torres Strait
Islander and culturally andlinguistically diverse groups of
individuals, because when aperson is calls the police, if
they're a misidentified victim,they might have engaged in a
lower level form of offending,such as, you know, some property
damage or some inappropriatelanguage in public. They might
be quite highly emotionallycharged. And the police who

(46:51):
attend and only see thatsnapshot of behavior, or they
see a recording as some veryvolatile behavior, that's that
little moment they see thatperson as the offender, where,
if they'd gone into the overallbackstory of what has been going
on for a longer period of time,it might be discovered that the
primary aggressor is not theperson that they think it is

(47:12):
when they they attend on thatoccasion. So misidentified
victims are a vulnerable groupthat this legislation is aware
of and Legal Aid, New SouthWales has a specialist group of
lawyers, the domestic violenceunit and the WDVCAS group, who
are charged with seeking outrepresentation for people who

(47:34):
might come under this subset ofpeople caught before the legal
system.

Thank you. I think you spoke earlier as well
about the support that communityworkers can provide in relation
to reporting and those legal aidservices can provide victims
with legal advice before theyjust when they're considering
making a police report. Is thatcorrect?

Hayley (47:57):
That is, domestic violence affects multi aspects
of the legal system and people'sprivate lives. There are cross
practice issues for visas.There's cross practice issues
for housing and civil law andrental rights, banking and
finance and those areas, there'scross practice issues very, very

(48:20):
largely for family law. So whena community worker has this
person effectively on theirdoorstep with in many ways,
their life imploding, thecommunity worker is at that
critical moment of being able toassist an individual with being
connected with other areas wherethey can receive help. Legal Aid

(48:44):
has a free advice service forcivil law, family law, criminal
law, but we also have aspecialist service that deals
with domestic violence victimscalled the domestic violence
unit. If listeners are listeningfrom Interstate, there's
probably mirroring organisationsto legal aid in those states,

(49:04):
but the WDVCAS and domesticviolence unit are specialist
units inside Legal Aid who havewho are separate. They have
firewall protection from all theother areas. They have lawyers
who are particularly trained todeal with people who are the
primary victims of domesticviolence who are going through
those life implosions, and theyhave lawyers across practices.

(49:27):
They have family lawyers, theyhave civil lawyers, and they
have criminal lawyers that workwithin that whole area so
community workers can pick thesevictims up and hopefully channel
them into services like ours andother similar services that are
present within the state andalso in that opportunity that

(49:49):
they have with them, start theprocess of educating them so
they can seek protection fromputting in layers of protection
into their circumstances.Hopefully.

Thank you. I just wonder if either of you
have anything to say about therole of police in relation to
the offence of domestic abuse.

Helen (50:11):
I think that it's very important with the law coming in
that I would imagine, well, Ibelieve that police are being
delivered training. I hope thatthey are, because it's
imperative that the firstresponders recognise those very
examples of misidentifiedvictims, misidentified

(50:34):
perpetrators, misplaced victimloyalty, things like that. Probe
A bit further when somebodysays, No, No, I'm okay. I'm
okay. You know, don't justleave. When somebody says no, I
wasn't hit by that person. Thered mark on my face is just
because I bumped into the door.Don't just take that at face

(50:58):
value. Probe a bit further andhaving that understanding and
empathy. You know, when somebodyfeels that they are being
stalked, when they are beingtreated in these controlling,
abusive ways that the person'sactually believed a lot more

(51:21):
than just being turned away andbeing told nothing that the
police can do. That's my hopeanyway.

Hayley (51:28):
There are some results that are published online by a
group called BOSCAR, which isthe New South Wales crime
statistics analytical group, andsince the coercive control laws
came into force on the first ofJuly till September 2024 there
were 76 coercive controlincidences that were recorded by

(51:53):
New South Wales Police, andthere have been two matters that
have resulted in charges. One ofthose two matters was resulted
in a plea, and that'sencouraging, because from
studies from the UK and fromScotland, this type of law when
it comes in, it's got a periodof time where it really does

(52:16):
take a little bit of onboarding,and the government put in a lot
of time and money into the edge,into education of police and
lawyers and community workersand various other stakeholders,
and for us to see those kind ofstatistics so early on, is
slightly, mildly encouraging.What was really interesting when
you when I've drilled down intothe those results from BOSCAR,

(52:40):
the Bureau of crime statisticsand research, is that the two
major like 54% of thosecoercive, controlling statistics
related to behavior, whichincluded harassment, monitoring
and tracking. That was the morethan half and the other big
group, 45% included financialabuse that you can you can get

(53:04):
coercive control that that hasmultiple parts, so it has
harassment, monitoring andtracking. It has also got
financial abuse. It's also gotshaming and degradation and
humiliation. It's also gotthreats. But I think it's a
really interesting statistic tosee that it's it's those little

(53:24):
things like the harassment andmonitoring that are quite strong
red flags. And it really doesshow you that there's probably
quite a high likelihood that alot of what goes on in abuse
comes through technology,technological forms. So I think
if community workers are seeingany evidence of that on mobile

(53:47):
phones, it's quite a likelyindicator that there's this
stuff's going on in relation tothis individual, and the content
in the phone is very relevantevidence.

Thank you. I think we've covered a fairly
broad area of topics in relationto this new offense. Is there
anything else either of youwould like to add?

Helen (54:11):
I think that it's very important that we recognise that
when people are accused of this,that it's bet in everyone's best
interest, that that person islegally represented rather than
representing themself in court.That's not to say that the
defense lawyer condones orjustifies the behavior. That is

(54:34):
not the role of the defenselawyer. Look at it more that the
defense lawyer's role is toensure that their client
receives a fair go, gets throughthe system in a fair way, that
their rights are protected, butalso that, you know, doing

(54:55):
things in an ethical way, sothat the the person. On the
other side, the victim is notfurther humiliated or degraded
through the system, and the lastthing that anybody wants is for
a person in need of protectionor a victim of these serious

(55:15):
crimes to be humiliated in courtby dragged out terrible
questioning by an accusedperson. You really you want the
lawyer to be putting up asafeguard against that sort of
behavior that people should berepresented and because it will
save time, it'll be moreefficient and it'll be more

(55:39):
humane as well.

Hayley (55:41):
If I agree, I really do agree with those sentiments of
Helen. For me, I think the partI find so important about this
offence and and broader, theconcept behind it is that it
actually comes down to aconcepts of rights and like the
right to a defense at law andrepresentation in legal

(56:04):
proceedings. People also haverights in society. And I think
what this legislation is tryingto do, and in some ways, is
doing effectively, is it'sdrawing a line in the sand where
impingement on a person's rightsto self, autonomy, to being, to

(56:25):
existing, is formally recognizedas a criminal offense. Everyone
has the right to safety andfreedom of existence, and when
those things are curtailed, it'sa wrong. It is a wrong for
individuals to have to gothrough that and experience
that. And I think in leading inAustralia, and also being one of

(56:49):
very few countries in the worldwith legislation of this type,
our state has taken a veryeducated and well informed leap
forward in supporting the rightsof every person. So that's my
concluding remarks.

Thank you, Hayley, and it's so fitting that
they are your concludingremarks, because the day that
we're recording this on isInternational Human Rights Day,
and those rights that you speakof are part of the International
Declaration of Human Rights, andit's so fitting that we conclude
on that note. Thank you.

Hayley (57:28):
Thank you both. Thank you Helen, thank you Bridget,
it's always lovely to talk toyou or both.

Helen (57:32):
Thank you Hayley. Thank you Bridget.

Yasmine (57:36):
That's all for this episode. Don't forget to check
the show notes for moreinformation and links to
different resources mentioned inthis episode, you're listening
to Law for Community Workers,catch you next time you.

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'Til the violence ends - Episode 4: Coercive control

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}'Til the violence ends - Episode 4: Coercive control