Indigenous Law Bulletin
by Sabina Crawley
The Scene: A group of women are seated on a dusty stretch of grass, shaded by a tree, next to the ‘court room’ on ‘bush court’ day in their community. Family members attempt to translate a young woman’s fear and confusion regarding the day’s events: she doesn’t want to go inside the court room and ‘talk’; it’s too shameful to explain in front of white and black men how her husband ‘stripped’ her, amongst other humiliations too private to discuss. The Magistrate said last time that it wasn’t ‘serious enough’ for a police Restraining Order and she is confused. If she ‘talks’ this time and her husband goes to gaol, his family have said it will be her fault. Last time they belted her when he ‘went away’. There is no shelter on the community for her to stay safely away from his family, no available victim support worker or professional translator to assist her in court, no program to assist in her husband’s gunja problem and few community members willing to pressure him to change his behaviour.
The above scene is not unfamiliar to any remote community in the Northern Territory (‘NT’). The complexities of traditional culture combined with isolation, lack of services and the absoluteness of a criminal justice system provides challenges for police, lawyers and associated agencies, but none more so than those faced by the victim and her community as a whole.
This article attempts to discuss some of the implications for remote Aboriginal women regarding the NT Government’s No Drop Policy (‘NDP’), which concerns the prosecution of criminal offences in relation to family violence.
In plain English, this means that the Office of the Director of Public Prosecutions (‘ODPP’) is required to continue a prosecution in relation to offences arising out of family violence, regardless of the victim’s wishes. Additionally, the police are required, in certain circumstances, to consider applying for a Restraining Order on behalf of the victim, again irrespective of her views. The policy has particular ramifications for Aboriginal women living in remote communities, although these implications are not always unique to these women alone.
The policy itself arose to protect victims from being pressured to withdraw criminal charges, as well as to counter myths and attitudes regarding the ‘lesser’ nature of violence within the domestic realm - in the minds of the public as well as prosecuting authorities.
This commendable premise has created a policy which has been extremely successful when adopted as part of an integrated domestic violence policy model elsewhere, such as that developed in Duluth, Minnesota in the United States. In that city, an holistic response to a criminal act combines victim support and perpetrator programs with information sharing between these and other agencies involved in the criminal justice process. It is acknowledged that this model was applied in a contained area and that the large expanse of the NT and its small population base poses special difficulties.
Whilst the NDP features in the ODPP’s guidelines, in practice it has been poorly implemented and suffers from a lack of comprehensive criminal justice policy. A local example of an integrated Domestic Violence criminal justice policy is that of the Australian Capital Territory (‘ACT’) Family Violence Intervention Program.
The following scenario is based on a matter which occurred in September 2004:
Case Study: A Remote Community in the Top End
A young woman is trying to hang herself. She is 24. She carried the first of her four children at the age of 13. Since that time she has lived with physical violence perpetrated by her husband. He now has another young wife but continues to steal their children’s payments for gambling, grog and gunja. His family beat her the last time he went to gaol for assaults against her, and she has nowhere to live but with them. The Police take out a no contact restraining order and that night a family member forces her back home at the request of the husband. The next week he begins hitting and kicking her again.
She calls the Top End Women’s Legal Service’s toll free number and makes a statement to her Solicitor, who alerts medical authorities and the Police. He says he will kill her that night. She says it is hopeless; nothing will ever change. She has already attempted to take her life once and now she is going to do it ‘properly’. She is diagnosed as being profoundly depressed and is evacuated to Darwin for her safety.
The Police in this instance have attempted to protect the victim by taking out a Restraining Order against a repeat offender in accordance with the NDP. Yet in adhering to the NDP by prosecuting the subsequent breach, they face a dilemma. They know the man will plead not guilty and the victim will therefore have to give oral evidence in court.
In the NT, fundamental emphasis is placed on the victim providing oral testimony, most particularly to prove that an application of force was without the victim’s consent (in proving an Aggravated Unlawful Assault). They know the victim is too emotionally fragile to give evidence at a hearing and that doing so poses a great risk to her mental health. Moreover, she will be required to return to the community to give evidence, placing herself at serious risk of physical violence as well as the real possibility that she will not be ‘allowed’ to return to Darwin.
In this scenario, a strict No Drop Policy, as articulated by ODPP guidelines, serves only to punish the victim who is already at risk. Furthermore, it explicitly rejects the rights of victims as stated in the Charter for Victims of Crime, whereby victims are to be consulted and their circumstances acknowledged in the prosecution process.
There is a general view that the Officer In Charge (‘OIC’) at a remote community will ‘get the case ready’ and endeavour to secure appropriate victim support which will offset some of the harsher implications of the NDP. The reality is, however, that the OIC may be responsible for a 20,000 square kilometre area, and is assisted by only one other officer. Due to a lack of time, resources or education, vulnerable witness protections under s 21 of the Evidence Act (NT) are generally not requested and support workers or translators are often not arranged to attend.
The answer to this dilemma lies somewhere in between ‘policies aligned to either victim choice or strict no drop prosecution (which) do not meet the complex demands of prosecuting domestic violence offences... [B]oth approaches have the potential to undermine the policy position that domestic violence is a crime that requires a public response.’
Under the ACT’s Family Violence Intervention Program (‘FVIP’), requests from victims to withdraw proceedings are closely analysed to ascertain what the ‘real’ reasons are for such a request. The policy places the responsibility on the ODPP to bring a prosecution as opposed to placing responsibility on the victim, and proceedings are conducted with the help of a Witness Assistant and a ‘Family Violence Prosecutor’. The Family Violence Prosecutor has the discretion to withdraw proceedings for evidentiary reasons, as well as taking the circumstances of the victim into account.
Significantly, 60 to 70 per cent of defendants in the FVIP pilot area entered a guilty plea at the mention stage (almost a complete reversal in statistics). Prosecutors attributed this, in part, to a better quality of evidence (gathered from sources other than the victim) and a more thorough brief preparation.
The NT Department of Justice is developing a draft prosecution policy for domestic and family violence offences, following on from a review of the NDP in consultation with various stakeholders and following recommendations of a working group made up of some of those interests.
The policy would apply to all criminal offences where the accused is in a family or intimate relationship with the victim.
The principle and objectives underlying the new policy are that victim safety is paramount and that perpetrators should be held accountable. It is fundamental that justice agencies share and monitor information in a coordinated fashion. For instance, it is proposed that with the consent of the victim, any support service she has used are to be included in her casefile. The Witness Assistant Service (‘WAS’) is to be notified of all domestic/family violence proceedings and, where they cannot attend a defended hearing, must make every effort to provide victim support for that client.
It is also proposed that information will be maintained about such support services in bush court areas. Interpreters must be used where English is not the first language, in court proceedings and to proof the victim. If a victim cannot give evidence in court without harassment in a bush court, prosecutors should consider transferring the proceedings to Darwin, Katherine or Alice Springs.
It is also proposed that victims who do not wish to give evidence shall be referred by the Family Violence Prosecutor, the WAS Officer or some other victim support, who will liaise with the prosecution to determine the public interest in continuing (or discontinuing) the proceedings.
The victim’s wishes are a relevant consideration, together with consideration of the prospect of a conviction and other public interest factors.
Neither victims nor perpetrators are supported by purely legal responses to family violence in remote communities. Support services and initiatives are required for the whole of the community to help break the cycle of violence, to foster attitudinal generational change and to accord immediate protection to the victim whilst holding perpetrators accountable.
The education of prosecuting authorities is fundamental to successfully balancing public interest factors in regard to the prosecution of family violence offences. There is a need to introduce new policy that recognises the need to have a criminal justice response to family violence that also pays due regard to the needs of victims.
Sabina Crawley is a Solicitor employed by the Top End Women’s Legal Service in Darwin, within the Aboriginal Women’s Outreach Unit. The Unit provides legal assistance and education to women in the remote communities of Kunbarllanjnja (Oenpelli), Wadeye (Port Keats) and Groote Eylandt, with a priority given to family violence matters. The author wishes to thank Kate Halliday, Senior Policy Solicitor with the NT Department of Justice, for much of the information used in this article.
 The No Drop Policy was incorporated into the NT Domestic Violence Strategy in 1995.
 The common term used by many Indigenous people in NT to describe what is otherwise known as ‘domestic’ violence.
 Some police have denied the existence of such a policy altogether. See ‘Correspondence from I van Roekel, Community Development and Training Officer, Alice Springs’ in ‘Domestic Violence Strategy Review of the “No Drop” Policy’, (2002) NT Department of Justice, 18.
 Some details have been changed to protect the client’s identity.
 S188(1)(b) of the Criminal Code Act (NT).
 NT Charter for Victims of Crime <http://www.nt.gov.au/justice/graphpages/crimvict/ntcharter.shtml> at 9 November 2004.
 Robyn Holder and Nicole Mayo, ‘What do Women Want? Prosecuting Family Violence in the ACT’ (2003) 15 Current Issues in Criminal Justice 5.
 Robyn Holder, ‘Domestic and Family Violence: Criminal Justice Interventions’ (Issues Paper 3, Australian Domestic & Family Violence Clearinghouse, 2001) 14.
 Stakeholders consulted included the ODPP, NT Police, Women’s Crisis Shelters, Legal Services and Councils, various health services, the Darwin Victim Support Unit and the Chief Magistrate of the NT.
 Where the Prosecutor reviews the victim’s statement with them prior to the victim giving evidence in court.