Legal service for defendants in Apprehended Domestic Violence

Order (ADVO) proceedings: An evaluation

Lily Trimboli

NSW Bureau of Crime Statistics and Research

The Applied Research in Crime and Justice Conference

18 – 19 February 2015

BACKGROUND

• Domestic violence is a significant problem with social, economic, health and financial consequences.

• It encompasses physical violence, emotional abuse, verbal abuse, intimidation, and economic and social deprivation.

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Domestic violence in AustraliaInternational Violence Against Women Survey

(December 2002 – June 2003)

Of surveyed Australian women aged ≥ 18 years:

• 10% reported experiencing at least one incident of physical and/or sexual violence in the previous 12 months; and

• 57% reported experiencing at least one incident of physical and/or sexual violence over their lifetime.

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However, risk and severity of violence differed according to the status of the relationship.

• About 1 in 10 women in a current intimate relationship reported ever experiencing violence from their current male partner.

• 36% of women who have had a past relationship reported experiencing physical or sexual violence from a former partner (both within the relationship and after).

• 42% of women who experienced violence from a former intimate partner sustained injuries (bruises, swelling) in the most recent incident, whereas 35% of women who experienced violence from a current intimate partner sustained injuries.

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Crime Victimisation Survey (ABS, July 2012 – July 2013)

When asked about their most recent incident of physical violence, female victims aged ≥ 15 years reported that:

• the offender was male (77.3%) and known to her (75.6%);

• in 47.8% of cases, her own home was the location of the incident;

• 48.4% of incidents were not reported to the police.

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Legislation

• In NSW, a primary response to domestic violence is the Apprehended Domestic Violence Order (ADVO).

• The Crimes (Domestic and Personal Violence) Act 2007 (NSW) empowers local courts to make ADVOs to protect individuals from future harmful or threatening behaviour by defendants.

• Proscribed behaviours include assaults, harassment, threats, stalking and intimidation.

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‘Domestic relationship’The legislation recognises a range of relationships as ‘domestic’: • a spouse of the person seeking protection; • a de facto partner; • in an intimate relationship with the protected person; • living in the same household as the protected person; • a long-term resident in the same residential facility; • dependent on the paid or unpaid care of the protected

person; • part of the protected person’s Indigenous kinship system or

extended family; and/or • a relative (including step- and in-law relationships).

Each of these relationships could be current or former.7

RESEARCH AIMS

1. To determine whether the provision of legal advice by a duty solicitor to ADVO defendants reduces the likelihood of breaches.

2. To determine the level of satisfaction amongst defendants and key stakeholders with the operation and implementation of the defendant solicitor pilot program at Burwood Local Court.

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Legal service for defendants in ADVO proceedings

• Legal Aid NSW employed two female private solicitors to advise and represent unrepresented ADVO defendants on AVO list day at Burwood Local Court.

• Defendants with both stand-alone ADVOs and related charges were eligible. Solicitors ran simple guilty pleas.

• Solicitors advocated to achieve workable orders that both protected the applicant and could be reasonably complied with by the defendant.

• Service lasted for 15 weeks (26 July – 8 November 2013).

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METHOD

Impact of program on breachesObjective: to determine if providing legal advice to defendants in ADVO proceedings reduces the frequency of breaches.

• Structured interviews with two groups of protected persons:

1. Non-intervention phase (baseline measure): n = 82

2. Intervention phase: n = 65

• Both groups were interviewed about their experiences of proscribed behaviours during two time periods: the month prior to applying for the ADVO; and the month after the ADVO was served on the defendant.

• Pre-post ADVO changes in proscribed behaviours in the two groups of protected persons were compared.

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Both groups of protected persons were asked the same core questions about proscribed behaviours in each of the two interviews (pre-ADVO application and post-ADVO service).

• proscribed behaviours:

stalking;

verbal abuse;

approaches to family, friends, colleagues;

intimidation;

physical assault; and

threats of physical assault.

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Defendant satisfaction with pilot program

• Structured interview schedule, closed and open questions.

• Key questions:

difficulty of understanding the ADVO conditions imposed by magistrate (5-point Likert scale);

whether defendant believed he/she could abide by conditions; and

information provided by solicitor about the consequences of breaching the conditions (open-ended).

• 29 telephone interviews conducted by male interviewer during the last 5 weeks of the pilot program.

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Stakeholder satisfaction with pilot program

• Semi-structured telephone interviews conducted with 20 stakeholders after pilot program ended.

• Categories of stakeholders invited for interview: magistrates, registrars, police prosecutors, Domestic Violence Liaison Officers (police), defendant duty solicitors, Legal Aid NSW solicitors, Legal Aid NSW staff and WDVCAS staff.

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Each stakeholder was asked five core questions:

1. Do you think there is a need for this legal service for ADVO defendants?

2. What aspects of the pilot program worked well? What were the positive features of the program?

3. What aspects of the pilot program did not work well? What were the negative features of the program?

4. What improvements could be made in the operation of the program?

5. Overall, what is your opinion of the program?

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RESULTS

 

Type of proscribed

behaviour

Non-intervention phase (N = 82) Intervention phase (N = 65)

Pre-AVO application Post-AVO served Pre-AVO application Post-AVO served

N % N % N % N %

Stalking 20 24.4 3 3.7 18 27.7 7 10.8

Physical assault 47 57.3 1 1.2 48 73.9 0 0.0

Threats of physical assault 39 47.6 2 2.4 30 46.2 5 7.7

Verbal abuse 65 79.3 13 15.9 46 70.8 9 13.9

Contact others 33 40.2 12 14.6 19 29.7 10 15.4

Intimidation 45 54.9 16 19.8 39 60.0 12 18.517

Impact of program on breaches

• Compared to the four weeks before applying for their ADVO, during the four weeks after the ADVO was served, there was a reduction in the proportion of protected persons who reported experiencing each type of behaviour proscribed by the legislation.

• These pre-post ADVO reductions were statistically significant for both groups of protected persons.

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• BUT there were no significant differences between the two groups of protected persons.

During the first four weeks that the ADVO was active, it was equally effective for most of the protected persons interviewed, regardless of whether they were interviewed before the legal service was implemented or during its implementation, and regardless of whether the associated defendant had received legal advice.

• This suggests that providing free legal advice to ADVO defendants did not result in fewer breaches of the proscribed behaviours.

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Defendant satisfaction with pilot program

Of 29 defendants interviewed:

• 90% were male;

• average age of 38 years;

• 31% were interviewed with a qualified interpreter; and

• 52% were at court for both the ADVO and associated charges (e.g. common assault, stalking).

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• 97% reported that the solicitor explained the ADVO conditions.

• 57% stated that it was ‘easy’ or ‘very easy’ to understand the ADVO conditions imposed by the magistrate, but 21% stated that it was ‘hard’ or ‘very hard’ to understand the conditions.

• 97% felt that the solicitor had treated them respectfully or very respectfully.

• 86% were satisfied or very satisfied with the manner in which the solicitor dealt with their matter in the courtroom.

• 86% stated that they would recommend the legal service to other people in a situation similar to their own.

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What did the solicitor say would happen if you breach or break any of the ADVO conditions?

Most defendants reported that the solicitors had explained the serious ramifications of breaching the conditions:

• 59% stated that the solicitor had explained that they would spend two years in gaol and be fined $5,500;

• 24% reported that the solicitor told them they would be arrested/prosecuted; and

• 3.5% stated that the solicitor had informed them that a breach would result in gaol time.

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Stakeholder satisfaction with pilot program

Do you think there is a need for this legal service for ADVO defendants?

• 18 of the 20 stakeholders interviewed said there was a clear need for free legal advice and representation at the first mention.

• Some believed this type of legal service is particularly necessary in areas with a high proportion of people of non-English speaking backgrounds who may not understand the language and/or the Australian legal system.

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• Defendants who would otherwise have been unrepresented received legal advice regarding their specific circumstances and were represented in court. So, negotiated and practicable ADVOs were developed reflecting the unique needs of both the protected persons and the defendants.

• Defendants left the courthouse understanding the ADVO conditions, the implications of each condition and the ramifications of breaching any condition.

• Solicitors could identify issues affecting defendants’ offending behaviour early on and make referrals to services (e.g. housing, mental health, relationships, drug/alcohol, immigration).

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What aspects of the pilot program worked well? What were the positive features of the program?

• Program had positive consequences for the court, other stakeholders and protected persons:

the experience and skill set of the two defendant solicitors meant magistrates received clear and concise advice, so the court process ran smoothly;

matters were finalised more quickly due to the prior negotiation and resolution of issues, saving time and ultimately cost;

relevant stakeholders were prompted to devise new streamlined processes (e.g. the DVLOs designed an instruction sheet for defendants, this formed the basis for negotiations between the various parties);

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program eased the workload of other stakeholders;

providing legal advice enabled defendants to make informed decisions at the first mention. This:

reduced, or even eliminated, the need for adjournments;

meant that neither defendants nor the associated protected persons had to return to court on numerous occasions. This, in turn, made the courthouse less crowded; and the court process less stressful, less inconvenient and more efficient for all parties, including the court.

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What aspects of the pilot program did not work well? What were the negative features of the program?

• Some stakeholders reported no negative features.

• Among those who noted negative features, the emphasis was on processes which, at times, did not operate smoothly, for example:

due to the high volume of matters on AVO list day, there were delays for key participants, including the protected persons and DVLOs, who had to wait for the solicitors to mention their matters after consulting with the relevant defendants;

at times, interpreters in the relevant languages had not been appointed, resulting in adjournments.

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What improvements could be made in the operation of the program?

Stakeholders suggested administrative improvements to increase efficiency on AVO list day:

• prior to list day, book relevant interpreters;

• stagger the court list;

• encourage protected persons to attend court on list day to allow negotiations and written agreements between the solicitors, particularly regarding contact arrangements.

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Overall opinion of legal service

• All stakeholders believed that the legal service was valuable and effective.

• The absence of the legal service at the end of the pilot period was lamented by several stakeholders who perceived that more matters were adjourned because defendants had to seek legal advice or apply for legal aid.

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CONCLUSIONS

• Providing legal advice and representation to ADVO defendants does not result in fewer breaches of ADVOs during the first four weeks after the orders are served on defendants.

HOWEVER

• Defendants accessing the new legal service report high levels of satisfaction with it.

• Stakeholders associated with the provision of the service are strongly supportive of it, reporting that it has a beneficial effect on court processes.

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