Legal Aid NSW Criminal Law Conference 2024 1 Why
Description: Legal Aid NSW Criminal Law Conference 2024 1 Why Criminalise Coercive Control? 2 The Elements of the offence s54D of the Act An adult commits an offence if the adult engages in a course of conduct against another person that consists of
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slide1. Legal Aid NSW Criminal Law Conference 2024 1<br>
slide2. Why Criminalise Coercive Control? 2<br>
slide3. The Elements of the offence – s54D of the Act An adult commits an offence if—
the adult engages in a course of conduct against another person that consists of abusive behaviour, and
(b) the adult and other person are or were intimate partners, and
(c) the adult intends the course of conduct to coerce or control the other person, and 3<br>
slide4. Elements of the offence – s54D of the Act (d) a reasonable person would consider the course of conduct would be likely, in all the circumstances, to cause any or all of the following, whether or not the fear or impact is in fact caused—
fear that violence will be used against the other person or another person, or
(ii) a serious adverse impact on the capacity of the other person to engage in some or all of the person’s ordinary day-to-day activities.
Maximum penalty—Imprisonment for 7 years. 4<br>
slide5. The Elements of the offence – s54D of the Act (2) For subsection (1)(a)—
the course of conduct may be constituted by any combination of abusive behaviours, and
(b) whether the course of conduct consists of abusive behaviour must be assessed by considering the totality of the behaviours. 5<br>
slide6. Definition Added 6<br>
slide7. Definitions within the Act 7<br>
slide8. Intention to Coerce or Control the adult “intends the course of conduct to coerce or control” the other person s. 54D(c)
the intention element attaches to the “course of conduct”, not the abusive behaviours that make up the course of conduct
proof of intention: eg inferences, admissions, s. 66A Evidence Act 1995
NOT recklessness; NOT or an intention to cause the victim/survivor harm 8<br>
slide9. Procedural Requirements - s54H 9<br>
slide10. Statutory Defence – s54E 10<br>
slide11. Prosecution Practice 11<br>
slide12. Sentencing and Penalties 12<br>
slide13. Scenario 1 : Jane and John Early on in their relationship, John wanted Jane to get a different job that didn’t involve night shifts so that she would be at home more. Jane didn’t want to quit her job, but John stopped driving her to work and she was fired. From then, Jane was expected to do all the housework and John constantly criticised her efforts.
John would get upset if Jane went to see family or friends. He would call her constantly throughout the day to check on her whereabouts.
Eventually, Jane got a new job, but John demanded all wages be paid into a joint account.
John kept asking Jane to quit her job again. One day they had a big argument about Jane working and police attended. Jane said John had physically restrained her to stop her leaving the house. She made a statement and John was charged with abusive behaviour.
John instructs his lawyer that:
Jane was hitting herself around the head so he put her in a bear hug to calm her down.
He never didn't want her to work – he was concerned about the working conditions at her jobs.
They had an agreement for her to be at home and for him to control finances. He says this was for her own benefit because in the past she has had a gambling problem.
He denies trying to isolate her. 13<br>
slide14. Scenario 2 : Alex and Casey Alex and Casey had been together for 5 years, and they have 2 young children together. Alex has no criminal history and there have been no previous AVOs. They live in a small town on a rural property. Alex is a well-respected farmer. He has a firearms license.
Early on in their relationship, Alex choked Casey and threatened to shoot her. This was never reported to police. After that incident, Casey would often wake up in the night and Alex would have his hand near her throat. Alex often talked about guns.
Casey left the property with the children with the help of a refuge. She refuses to allow Alex see the children.
Alex send Casey texts saying “return the children to me now or else” and “everyone in this town is going to know what kind of mother you are.”
Family law proceedings are now on foot.
Alex instructs his lawyer that:
This is all about custody of the kids – she wants full custody and is financially motivated.
The only thing he admits are the texts, and he says he sent these because he was angry and devastated about not seeing the children.
He says she has serious mental health issues, that she is lying and he wants to subpoena her medical records.
Police rely on: the complainant’s statement, and screen shots from the ‘Empower you’ app.
The accused is found guilty after hearing and wants to make a s 14 application on the basis of diagnoses of depression and anxiety. 14<br>
slide15. Scenario 3 : Ryan and Claire Ryan has a lengthy criminal history, including domestic violence offences against former partners.
In relation to an incident in 2023, he has been charged with: sexual assault, choking and AOABH.
He is also charged with abusive behaviour, based on the following conduct towards Claire from 1 July 2024:
Damage to property.
Threats to self-harm.
Demanding money from her to buy drugs.
Stealing money and wanting to sell pictures of her naked.
Name-calling.
Cutting up her clothes.
Since Ryan has been charged, Claire had he has approached the police on two occasions seeking to withdraw her statement. She has tried to contact Ryan’s lawyer too. Ryan shows his lawyer texts from her saying “I never wanted things to end up like this.” 15<br>
slide16. Cases and Further Reading UK
R v Conlon [2018] 1 cr. App. R (S.) 38
R v Brown [2021] EWCA Crim 126
R v Chilvers [2021] EWCA Crim 1311 – notable case
R v Kingswell [2022] EWCA Crim 814
R v Jeffries [2023] EWCA Crim 21
Scottish
Procurator Fiscal, Livingstone v H (J) 2021 S.L.T (Sch Ct) 415
HM Advocate v B (L) [2022] HCJAC 48
Walker (Scotland) v Procurator Fiscal, Dunoon [2022] SAC (Crim) 9 – notable case
Tasmanian
Howe v S [2013] TASMC 33
Police v Benjamin James Nunn [2021] TASMC 3 – notable case Legal Aid NSW Training Resource and podcast series on Coercive Control can be publicly found at;
www.legalaid.nsw.gov.au/forlawyers/resources-and-tools/coercivecontrol 16<br>
slide2. Why Criminalise Coercive Control? 2<br>
slide3. The Elements of the offence – s54D of the Act An adult commits an offence if—
the adult engages in a course of conduct against another person that consists of abusive behaviour, and
(b) the adult and other person are or were intimate partners, and
(c) the adult intends the course of conduct to coerce or control the other person, and 3<br>
slide4. Elements of the offence – s54D of the Act (d) a reasonable person would consider the course of conduct would be likely, in all the circumstances, to cause any or all of the following, whether or not the fear or impact is in fact caused—
fear that violence will be used against the other person or another person, or
(ii) a serious adverse impact on the capacity of the other person to engage in some or all of the person’s ordinary day-to-day activities.
Maximum penalty—Imprisonment for 7 years. 4<br>
slide5. The Elements of the offence – s54D of the Act (2) For subsection (1)(a)—
the course of conduct may be constituted by any combination of abusive behaviours, and
(b) whether the course of conduct consists of abusive behaviour must be assessed by considering the totality of the behaviours. 5<br>
slide6. Definition Added 6<br>
slide7. Definitions within the Act 7<br>
slide8. Intention to Coerce or Control the adult “intends the course of conduct to coerce or control” the other person s. 54D(c)
the intention element attaches to the “course of conduct”, not the abusive behaviours that make up the course of conduct
proof of intention: eg inferences, admissions, s. 66A Evidence Act 1995
NOT recklessness; NOT or an intention to cause the victim/survivor harm 8<br>
slide9. Procedural Requirements - s54H 9<br>
slide10. Statutory Defence – s54E 10<br>
slide11. Prosecution Practice 11<br>
slide12. Sentencing and Penalties 12<br>
slide13. Scenario 1 : Jane and John Early on in their relationship, John wanted Jane to get a different job that didn’t involve night shifts so that she would be at home more. Jane didn’t want to quit her job, but John stopped driving her to work and she was fired. From then, Jane was expected to do all the housework and John constantly criticised her efforts.
John would get upset if Jane went to see family or friends. He would call her constantly throughout the day to check on her whereabouts.
Eventually, Jane got a new job, but John demanded all wages be paid into a joint account.
John kept asking Jane to quit her job again. One day they had a big argument about Jane working and police attended. Jane said John had physically restrained her to stop her leaving the house. She made a statement and John was charged with abusive behaviour.
John instructs his lawyer that:
Jane was hitting herself around the head so he put her in a bear hug to calm her down.
He never didn't want her to work – he was concerned about the working conditions at her jobs.
They had an agreement for her to be at home and for him to control finances. He says this was for her own benefit because in the past she has had a gambling problem.
He denies trying to isolate her. 13<br>
slide14. Scenario 2 : Alex and Casey Alex and Casey had been together for 5 years, and they have 2 young children together. Alex has no criminal history and there have been no previous AVOs. They live in a small town on a rural property. Alex is a well-respected farmer. He has a firearms license.
Early on in their relationship, Alex choked Casey and threatened to shoot her. This was never reported to police. After that incident, Casey would often wake up in the night and Alex would have his hand near her throat. Alex often talked about guns.
Casey left the property with the children with the help of a refuge. She refuses to allow Alex see the children.
Alex send Casey texts saying “return the children to me now or else” and “everyone in this town is going to know what kind of mother you are.”
Family law proceedings are now on foot.
Alex instructs his lawyer that:
This is all about custody of the kids – she wants full custody and is financially motivated.
The only thing he admits are the texts, and he says he sent these because he was angry and devastated about not seeing the children.
He says she has serious mental health issues, that she is lying and he wants to subpoena her medical records.
Police rely on: the complainant’s statement, and screen shots from the ‘Empower you’ app.
The accused is found guilty after hearing and wants to make a s 14 application on the basis of diagnoses of depression and anxiety. 14<br>
slide15. Scenario 3 : Ryan and Claire Ryan has a lengthy criminal history, including domestic violence offences against former partners.
In relation to an incident in 2023, he has been charged with: sexual assault, choking and AOABH.
He is also charged with abusive behaviour, based on the following conduct towards Claire from 1 July 2024:
Damage to property.
Threats to self-harm.
Demanding money from her to buy drugs.
Stealing money and wanting to sell pictures of her naked.
Name-calling.
Cutting up her clothes.
Since Ryan has been charged, Claire had he has approached the police on two occasions seeking to withdraw her statement. She has tried to contact Ryan’s lawyer too. Ryan shows his lawyer texts from her saying “I never wanted things to end up like this.” 15<br>
slide16. Cases and Further Reading UK
R v Conlon [2018] 1 cr. App. R (S.) 38
R v Brown [2021] EWCA Crim 126
R v Chilvers [2021] EWCA Crim 1311 – notable case
R v Kingswell [2022] EWCA Crim 814
R v Jeffries [2023] EWCA Crim 21
Scottish
Procurator Fiscal, Livingstone v H (J) 2021 S.L.T (Sch Ct) 415
HM Advocate v B (L) [2022] HCJAC 48
Walker (Scotland) v Procurator Fiscal, Dunoon [2022] SAC (Crim) 9 – notable case
Tasmanian
Howe v S [2013] TASMC 33
Police v Benjamin James Nunn [2021] TASMC 3 – notable case Legal Aid NSW Training Resource and podcast series on Coercive Control can be publicly found at;
www.legalaid.nsw.gov.au/forlawyers/resources-and-tools/coercivecontrol 16<br>