By Siobhan Nims, Senior Criminal Lawyer – Timpano Legal
From 1 October 2020, a range of new laws came into force, relevant to anyone who finds themselves the subject of family violence allegations.
The most well publicised of the changes are the new laws which make choking or suffocating an intimate partner a new offence in its own right, and which have created a new criminal offence of ‘persistent family violence’. However, the same legislation also includes sweeping changes to the laws about the type and quality of evidence allowed in court, the way bail applies and how the restraining order process works.
The bar for the new offence of ‘suffocation and strangulation’ is a low one. The offence is made out if it’s established that a person unlawfully affects another person’s normal breathing or blood circulation, whether that is by doing so using the hands or using something else (such as a rope or something similar). Unlawful suffocation and strangulation will occur where someone completely or even partially blocks another person’s nose or mouth, or where they apply pressure to another person’s neck.
Similarly, the ‘persistent family violence’ is deliberately broad in its application. ‘Persistent family violence’ will occur where an act of family violence occurs against the same victim three or more different times over a ten year period. ‘Family violence’ covers a wide range of offences, including assaults, stalking and property damage. The offence may be committed against spouses, de facto partners, those engaged to be married and anyone a person has (or has had) an intimate personal relationship with. That includes those who are dating (whether or not any sexual relationship has commenced or not).
The new offence effectively ‘overrides’ the usual protections that WA’s criminal procedure laws usually provide, in a number of ways. Usually, for instance, the prosecution would need to spell out with enough information when an act took place (e.g. dates or other ways of detailing the circumstances of the offence), so that the accused person can prepare for the case against them. The new laws eradicate a substantial number of those safeguards for an accused. In effect, they make it harder for an accused person to identify and potentially defend themselves against alleged historical acts of family violence.
Anyone who finds themselves charged or being investigated in relation to these offences should obtain legal advice as soon as possible. Although the laws impact a wide variety of people, the laws are also complex and it is well worth checking whether a defence may apply. There are technical rules, for example, about when an act of family violence will and will not count towards the three acts required. Certain acts which are ‘simple offences’, and which have a time limit on when they can be prosecuted cannot count as one of the acts of ‘family violence’, if the time limit for that offence has already expired. It is well worth consulting with a lawyer to see if this exception may apply in your matter.
For more information about the ways these new laws may apply to you or your matter, contact one of our criminal lawyers at Timpano Legal.