Earlier this year, an editorial was published in a Queensland newspaper which announced there was a “loophole” in the law in Queensland which prevented police from prosecuting a domestic violence offender under the criminal law if the police were also bringing an application for the making of a Protection Order against the offender. The editorial was critical of the State Government, Attorney-General Shannon Fentiman and suggested that the “loophole” was stopping police from keeping known perpetrators behind bars. The editorial went on to suggest that despite pleas from the Queensland Police Union and senior domestic violence lawyers the “loophole” remains.
While content of the editorial appeared to raise an alarming issue, what perhaps is more alarming is that it did not present an accurate report of the state of the law in Queensland. It is also alarming that the publisher has not yet taken steps to correct the errors contained in the editorial or remove the editorial from view online.
The Domestic Violence and Family Protection Act 2012 (“the Act”) was introduced as law in Queensland:-
- to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and
- to prevent or reduce domestic violence and the exposure of children to domestic violence; and
- to ensure that people who commit domestic violence are held accountable for their actions.
The Act achieves this by:-
- allowing a Court to make a Domestic Violence Order to provide protection against further domestic violence; and
- giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and
- imposing consequences for contravening a Domestic Violence Order or Police Protection Notice, in particular, liability for the commission of an offence.
The Act is administered under several principles including Section 4(f) which provides that a civil response under this Act should operate in conjunction with, not instead of the criminal law.
This principle espoused by section 4(f) means that there is no “loophole” which prevents the police from both charging an offender with a criminal offence and applying for a Protection Order to protect an aggrieved person.
There are some situations, where the police may apply for a Protection Order against a person, but do not charge that person with any criminal offences. There are several reasons this could occur.
One consideration is the standard of proof required to convict a person of a criminal charge. In civil matters, including an application for a Protection Order, the Court has to be satisfied ‘on the balance of probabilities’ that a Protection Order should be made. Essentially this means that that the Court has to be persuaded that it is more likely than not that a relevant relationship exists, domestic violence occurred, and it is necessary and desirable to make an Order for the protection of the aggrieved.
To convict a person of a criminal offence, the Court must be satisfied ‘beyond reasonable doubt’ that the accused committed that crime. Essentially this means that there is no other reasonable explanation than the accused committed the crime. Due to this higher standard of proof in criminal charges, some offenders are not charged with offences because the police do not believe that will be able to prove the offence to the required standard. In some instances, this is because a complainant is not prepared to give evidence to prove a criminal charge against the offender.
For more advice on Domestic Violence law in Queensland, please contact Steven Hayles.
