NSW AVO - Double Jeopardy?

[Claudia]

Hi.
My brother married overseas about 2 years ago. He sponsored her to Australia. A little less then a year later, she left him and applied for an AVO standard orders A B and C (domestic violence restraining orders). Additional orders not to enter her residential premises.

The day before the first hearing date, my brother called her in a last attempt to reconcile. He told his solicitor first thing hearing date, the prosecutor then approached him with same information and the phone call was known by both legals nothing was said about it, other than the appropriate look of disapproval.

On the first hearing date we got about 45 min with the magistrate at the end of the day, it was all taken up by her testimony. The next hearing was scheduled for 3.5 months away. The day came and my brother gave his testimony, the prosecutor asked him about the phone call and questioned his intent in the call. He told the truth. The case was dismissed.

It is now about 5 weeks after the dismissal and 3 days ago he was charged for breach of the AVO in relation to the phone call. That call was his last attempt, he's moved on. Basically:
*5 months after the offence and in full knowledge of both legal reps
* Court testimony and questioning over the call at a case that was dismissed
*Now Police charges over the same call?
How many times do you have to redeem yourself for the same offence?
Is there a precedent for this that anyone can point me to?

I think her persistence is motivated by her immigration problems and under their Family Violence Provision, a granted AVO order is required, to my understanding. However this side issue, I am still shocked that this is possible. How vulnerable are we if this can happen? The matter cost him a lot in health and on his income a huge effort.

 

[Owens Lawyers]

Hi Claudia,

Firstly, it is not a breach of an AVO to call the protected person if only the standard orders and an order restricting access to a premises are in place. That is unless the phone call was threatening, or there were a series of phone calls, enough to constitute harassment. So perhaps you or we don't have the full story here.

Secondly AVOs are civil matters, not criminal. So double jeapordy (or the defence of autrefois acquit in the Local Court) doesn't apply here. There is nothing improper about police charging someone for breaching an AVO, even where the AVO case itself was dismissed.

 

[Rod]

Hi Claudia,

I understand and sympathise with your frustration. One thing I've recently learnt is that there is a justice SYSTEM and the people that work in the system will follow the system that is in place. Sometimes fairness and justice can happen as a result of the system, but not always.

Your partner's case does seem to fall outside of the fairness test most people would apply, however police do not always use or apply common sense. He has been sucked up and stuck in the system now and you need to follow their system and their rules. The hard part is understanding all the rules so you can use them to get the fair result you want. Do lots of reading and more importantly - do not panic, do not stress too much. Read, do more reading and if necessary get legal advice on parts you do not understand.

Good luck.

 

[Claudia]

Hi,

Here is an up-date on the ongoing drama for my brother. The matter goes for a mention tomorrow. He is pleading not guilty. I sat with him and did a time line of events and re-read the breach. A few things have come up.

1. Plaintiff provided her application/statement to the police on the 31/10/2013. -
2. Incoming call record from Plaintiff to defendant on 6/11/2013 - not answered *** does this not prove her lack of fear of him???
3. Interim ADVO issued on 7/11/2013
4. Text received from Plaintiff’s daughter (1) on the 9/12/2013 requesting the defendant drop some account books that the plaintiff had left behind- to daughter (2) the current work place. Daughter (2) lives with plaintiff and is therefore covered by AVO. Text not answered by defendant..*** does this not prove her lack of fear of him???
5. No other type of communication between any party until the 8/4/2014
6. Defendant called daughter (2) on 8/4/2014 to ask her to ask the mother to reconsider;
7. Hearing commenced on 11/4/2014 and matter was finalised on 1 August 2014 when the Court gave judgment in favour of Defendant, after considering evidence including the defendant’s own evidence of the phone call to daughter (2)in April 2014. - supported by court transcripts of cross examination of the defendant and Magistrates closing comments, including that at that time (1 August 2014) that the plaintiff could not reasonably have fear
8. Daughter (2) made statement about the breech on 20/5/2014 over the call of the 8/4/2014
9. Approx 30/5/2014. the Police arrived and questioned the defendant about the call. Defendant admitted to the call specifying that it was non- threatening. Defendant advised that matter was at court and the legal representatives knew about it. Police advised of poss pending charge.
10. Next court date 1/8/2014 Defendant was crossed examined in court in relation to the matter. ADVO Application dismissed.
11. Defendant served with a breach on ADVO 8 weeks later.

Any though's would be appreciated.

Cheers
Claudia

 

[Owens Lawyers]

Hi Claudia,

Is the breach that he actually contacted her or that the contact was threatening or constituted harassment?

 

[Claudia]

Hi

The details of the offences are as following under the criminal act:
1. S 474.17 (1) use carriage service between 10:00 and 10:05 on the 8/4/14 to call daughter (2) in such a way that it was regarded as menacing .......contrary to the Criminal act Act.
2. S 14 (1) Did knowingly contravene a restriction specified in the order between 10:00 and 10:05 on the 8/4/14
3. S 13 (1) Stalk and intimidate daughter (2) between 10:00 and 10:05 on the 8/4/14 with intent to cause harm and cause her to have fear- physical and mental.

Thanks
Claudia