Técnicas e instrumentos de la investigación

The bail laws in most Australian jurisdictions generally provide that where a defendant is charged with domestic violence offences, with the breaching of a restraining order or where they are detained for the purposes of obtaining a restraining order in order to protect the victims of the offence, there is a presumption against granting that defendant bail.

The QLRC has recommended that a specific reference should be made in the Bail

Act 1980 (Qld) detailing on what grounds bail may not be justified where the

defendant involved has been charged with a domestic violence offence. The Commission went on to recommend that any definition of a ‘domestic violence offence’ be modelled on the NSW definition, which the QLRC argued at the time was broader in scope than Queensland’s, but to modify it to reflect the differences of the Queensland Criminal Code.110

110 _QLRC,

The Bail Act: Working Paper No 41, pp 18-19 and QLRC, The Bail Act 1980: Report No 43, p 47, Recommendation 8.

The NSW definition currently states that a domestic violence offence is a personal violence offence committed against specific classes of persons.111 _{A personal}

violence offence is considered to be any of a listed number of offences in the

Crimes Act 1900 (NSW). These offences include, for example, the commission of,

or attempting to commit, an offence of manslaughter, wounding with intent to do bodily harm, malicious wounding or infliction of grievous bodily harm, assault, sexual assault, indecent assault, maliciously destroying or damaging property, to do so with the intent to injure a person or endanger life and contravening an apprehended violence order. Some of these examples are recent additions which have been passed by the NSW Parliament but not yet proclaimed. 112

Section 11 of the Queensland Domestic Violence (Family Protection) Act 1989 defines domestic violence as the committal against a ‘spouse’ of:

a) wilful injury;

b) wilful damage to the spouse’s property; c) intimidation or harassment of the spouse;

d) indecent behaviour to the spouse without consent; and e) a threat to commit an act mentioned in paragraphs (a) to (d).

While these categories seem to cover all the offences listed in the NSW Crimes Act

1900, the NSW Act does extend its coverage to a wider range of people.

A ‘spouse’, under the Queensland Act, currently covers married couples, heterosexual de facto couples and the biological parents of a child (Section 12(1)). Amendments passed late in 1999, but not yet proclaimed, now extend this coverage to same-sex couples.113

However, in NSW, the specific categories of people who can be protected include, in addition to those covered in Queensland,:

(a) “a person who is living with or has lived ordinarily in the same household

as the person who commits the offence (otherwise than merely as a tenant or boarder)”; or

(b) “a person who is or has been a relative … of the person who commits the

offence”; or

(c) “a person who has or has had an intimate personal relationship with the

person who commits the offence”.114

111 _{Crimes Act 1900 (NSW), s 4.}

112 _{Crimes Act 1900 (NSW), s 4 and Crimes Amendment (Apprehended Violence) Act 1999} (NSW), Schedule 1, 2.

113

See Domestic Violence (Family Protection) Amendment Act 1999 (Qld) and Hon AM Bligh MLA, Queensland Parliamentary Debates, 12 November 1999, p 5057.

114

The new amendments in the Crimes Amendment (Apprehended Violence) Act 1999 (NSW) clarify that an intimate relationship does not necessarily have to be sexual in nature, omits the tenant/boarder qualification and adds the category of “person

who has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the person who commits the offence”.115

In addition, there was a recommendation that, in all domestic violence cases, certain persons should be notified where the applicant is granted bail, ie. those who would be at risk of further possible violence, for example, able to be protected by a domestic violence order under section 15 of the Domestic Violence (Family

Protection) Act 1989 (Qld) which includes a spouse, their relatives or associates.116

Another option is to state that there should be no presumption of bail in any incidence of domestic violence. The QLRC considers that measures, which direct the bail-granting authority’s attention to the seriousness of domestic violence and the community’s concern with its incidence, are sufficient. For example, amendments could be included to allow the probability of any future breach of a reasonable bail condition or future breach of a protection order to be taken into consideration and to be a reason to refuse bail.117

A suggestion was also made that a complainant in a domestic violence matter be able to request a review of a decision to grant bail and/or the conditions on which that grant is made. The QLRC argued against this option on the basis that they believed the current provisions were sufficient. A victim is currently permitted to alert a police officer to any potential breaches of a protection order and that officer may arrest the defendant without a warrant. Further, the QLRC argued, the extension of such a right to a complainant for this type of offence only, is difficult to justify.118

A further suggestion was made by the QLRC that where bail is granted on a domestic violence charge, there should be a mandatory requirement that the defendant surrender any firearms they possess and have any current firearms licences revoked. Again, the QLRC argued that this should not be made a condition for one type of offence only but that it could be made a condition of the bail granted with respect to any defendant facing criminal charges.119 _However, section 23 of the Domestic Violence (Family Protection) Act 1989 (Qld) provides that a domestic violence order must include a condition that the defendant not be

115 _{Crimes Amendment (Apprehended Violence) Act 1999 (NSW), Schedule 1, 1.} 116 _{QLRC, The Bail Act 1980: Report No 43, p 47, Recommendation 8.}

117

QLRC, The Bail Act: Working Paper No 41, p 18.

118 _QLRC,

The Bail Act 1980: Report No 43, p 33.

119

allowed to possess a weapon for the duration of the order and that all weapons licences are to be revoked on the making of that protection order. Section 74 of that Act provides that the defendant spouse must give any weapons they possess to the police when such an order is made against them.

More recently, the 1999 Discussion Paper released by the Women and the Criminal Code Taskforce commented that the Women’s Legal Service had suggested, in its submission to the QLRC, that an “investigation and analysis of the system” operating in NSW at that time be undertaken.120 _{In NSW, the presumption in favour}

of granting bail does not apply to domestic violence offences where the alleged offender has:

(a) a history of violence;

(b) been violent to the other person in the past (despite the lack of a conviction); or

(c) failed to comply with a bail condition in respect of the offence to which this section applies that was imposed for the protection and welfare of the other person.121

On a person being charged with such an offence, certain data is collected from the alleged offender to help in the development of prevention services.

In the ACT, section 8A of their Bail Act states that bail should not be granted unless, on the balance of probabilities, the officer making the bail decision believes no danger is posed to the victim or victims of the alleged offence.