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Episode 70
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Substantive Law
Prevalent and Insidious: the Sin of Coercive Control
Law as stated: 23 December 2022
What is this?
This episode was published and is accurate as at this date.
In this episode Andrew Tiedt, Director of J Sutton Associates, steps us through the new NSW standalone offence of coercive control - touching on the difficulties associated with an offence grounded on a course of conduct, the elements of the offence, and potential defences.
Substantive Law| What area(s) of law does this episode consider? | The new NSW coercive control criminal offence introduced by the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW). |
| Why is this topic relevant? | On 16 November 2022, the Crimes Legislation Amendment (Coercive Control) Bill 2022 was passed into law in NSW. With the passing of the Bill, NSW became the first Australian state to legislate a specific standalone offence of coercive control. |
| What legislation is considered in this episode? | Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) |
| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | Australian Bureau of Statistics, Personal Safety Survey, 2016 Australian Institute of Criminology, Statistical Bulletin 30, March 2021 Joint Select Committee on Coercive Control, Report, June 2021 NSW Bureau of Crime Statistics and Research, Domestic Violence Statistics for NSW, December 2021 UK Home Office, Review of the Controlling or Coercive Behaviour Offence, March 2021 |
| David Turner:
1:00 | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay the Legal Podcast is how we’re improving the experience of CPD. Domestic and family abuse is an insidious problem that Australian lawyers in many fields of practice have to grapple with, for some almost on a daily basis. Now, on the 16th of November 2022, the Crimes Legislation Amendment (Coercive Control) Bill was passed in New South Wales. The bill introduces into the Crimes Act, a new offence of abusive behaviour towards current or former intimate partners, carrying a maximum sentence of seven years. But not everyone’s happy about this new bill in its current form with some groups expressing concerns about the limitations of the offence in deterring coercive control in particular situations. Joining me today in the Curiosity Recording Room is Andrew Tiedt accredited specialist in criminal law to help us understand this new offence and how it might play out in practice. Andrew; thank you so much for joining me today on Hearsay. |
| Andrew Tiedt: | Only a pleasure, thank you. |
| DT: | Now, Andrew, you are a criminal law accredited specialist. Have you always been interested in criminal law or is it a recent passion? |
| AT:
2:00 | I’ve always been interested, but I didn’t really go to uni and leave uni with this great passion for criminal law. I, in many ways, fell into law, and then when I was unhappy with the previous job I had, sort of fell into criminal law looking for a greater advocacy experience. Criminal law is one of those areas where no matter what level you’re at, and no matter how many years experience you have, you’ll generally be, as it were, thrown into courtrooms and given the chance to really test your advocacy and grow in that area every day. So, I came into criminal law, not because of a passion for criminal law itself but an impassion and an enthusiasm for appearing in court and advocating for my clients, whoever they might be. So, I’ve done it… 15 years now, and I’ve sort of found myself in that area, but it wasn’t by any means what I entered law with the intention of doing or with any sort of great plan about where my career would go. It’s, sort of, happy coincidence here I am now. |
| DT: | Isn’t that interesting because often you hear the reverse, don’t you? You hear that people do leave university with a real passion for criminal law, want to work in the field and end up somewhere else. Can I ask, what was the first legal field of practice you were in before criminal law? |
| AT:
3:00 | I worked in tax, I have a degree in accounting as well, so I sort of fell into working for the ATO in the graduate program and that was a fine job, and I had a really good experience there but I found that if you’re keen on advocacy and if you’re keen on getting to courts and arguing your cases and representing people, there’s really, for me at least, no better area. Do that in crime because unlike many other areas where there’s a lot of very appropriate and proper pushes towards alternative dispute resolution and negotiations and settlements, criminal law really rises and dies in the courtroom. It’s one of those areas of law where more than any other, everything is decided by a judge or a magistrate. And that’s not a bad thing. That’s how we resolve criminal disputes in Australia and love it. I love being in that hurley-burley, the hustle, all the drama of a court proceeding, whether it’s a really small license appeal about someone’s driver’s license, or whether it’s a really big matter about someone spending potentially years or decades in jail. I really enjoy being involved in that process and doing what I can to help my client. |
| DT: | Now, you practice at J Sutton and Associates, where you are a director, what kind of criminal cases do you work on? You’ve described a few of them just now. |
| AT: 4:00 | We work across the full, kind of, gamut of criminal law, so I might be on Monday at a local court somewhere appearing on a sentence for a low range drink drive. And then after noon I might be conferencing a client who has a trial coming up for a serious sexual assault charge. We do an enormous amount of financial crimes things like ICAC hearings, things like very complex, difficult fraud prosecutions, the full gamut of criminal law. And that keeps it interesting, that’s for sure. I often tell people that, you know, my job is hard work. And it’s stressful and it’s tiring and it’s long hours, whatever you like but boy, every day it’s interesting. Every day is some new drama. Every day is some client, no matter how big or small their matter might be. Every day is in many ways the most important day of that client’s life. So, every day brings with it amazing new challenges and no matter whether it’s a big matter or a small matter it’s always an interesting new challenge every day of the week. |
| DT: | Absolutely. Now we’re going to talk about coercive control today. Before we start off on that topic, I want to ask you about the prevalence of domestic violence matters in the criminal law that you practice, maybe in your own practice. How often do you see these sorts of matters coming across your desk? |
| AT: 5:00
6:00
7:00 | Sure. Domestic violence is a huge part of the criminal law jurisdiction, whether you’re appearing in the poorest, or the wealthiest, or the fanciest, or whatever kind of area of Sydney you might appearing under. Even the state, no matter what part of Sydney you’re working in, domestic violence is an enormous part of the criminal law load in that area. Regrettably it is an insidious problem, as you said, and people across every possible demographic have this issue arise in their lives. So, no matter which local court you go to or which district court you go to, or Supreme Court even, you’re going to see an enormous amount of domestic violence prosecutions. TIP: Domestic violence is unfortunately a systemic problem and it’s much more likely than you think. The ABS conducts something called the Personal Safety Survey, the most recent of which was in 2016. The PSS showed that nearly 17% of Australian women had reported experiencing partner violence, and a massive 23% had experienced emotional abuse. For men, those figures are 6.1 and 16% for emotional abuse respectively. These numbers were exacerbated by the COVID-19 pandemic. The Australian Institute of Criminology conducted a survey of 10,000 Australian women asking whether they had experienced intimate partner violence during the first 12 months of the COVID-19 pandemic from February 2020. During the first 12 months of the pandemic, of the women surveyed, over 9.6% experienced physical violence, 7.6% experienced sexual violence, and approximately 32% reported having experienced emotional abuse – nearly a third of respondents. For another view on domestic violence in our court system, check out the episode with psychologist Alex Gyani, who approaches this issue through the lens of a behavioural economist. Now, that’s in one sense, a good thing because you want to see the police and the DPP taking action against domestic violence but of course, on the other hand it’s awful that there needs to be so much work done in that area but far more so in times gone past when domestic violence was seen as a family thing and a private thing, and, you know, the government shouldn’t be getting involved. The police in particular and the DPP are taking a very active and proactive role in trying to stamp out the problem but it’s an enormous, enormous problem that’s going to take a very long time to even reduce, let alone eliminate entirely. |
| DT: | Now, before we get into the terms of the new bill and the offence that it introduces, I want to talk about coercive control as a concept first. When we use those words, coercive control or controlling behavior what do we mean exactly? |
| AT:
8:00
9:00 | We’re generally talking about a pattern where people, often but not exclusively men, where they engage in some sort of conduct that really, to use the terms of the offence, controls the person that they’re dealing with. And that can be in very significant and obvious ways in terms of restricting what they can do, restricting them leaving the house, doing all sorts of things to keep that person to use the colloquialism under the thumb and make sure they’re doing what they’re “meant to be doing” but it can be far more subtle and far more difficult to notice as well. Things like financial abuse where a person isn’t allowed their own credit card and is given a set amount of money they’re allowed to spend each week because they as it were can’t be trusted to look after that kind of money. TIP: So, Andrew just mentioned financial abuse and provided the example of not allowing someone to have a credit card and only giving them access to a limited amount of funds. Financial abuse can manifest itself in many ways. To give you a quick rundown of what that can look like, generally financial abuse involves someone using money in a way that’s hurtful to another person. Financial abuse can extend to things like stopping a person from getting a job or forcing them to get loans that they don’t want. Prior to the introduction of coercive control, NSW didn’t afford the same legislative protections against financial abuse as some of our other states. For example, in Victoria, the Family Violence Protection Act 2008 (Vic) defines ‘economic abuse’ as: behaviour by a person… that is coercive, deceptive or unreasonably controls another person, without the second person’s consent— (a) in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour. There’s an enormous difficulty or problem in the community where one spouse or partner or the other is really controlled and in a very insidious, dangerous way, managed by the other partner so as purportedly to do what’s right for them but in fact, to control them – to coercively control them and ensure that they are dealt with in a way that is really abusive and really awful for the person who’s suffering from that. |
| DT: | It’s sometimes the case, isn’t it, that the victim of that abuse might not even be aware that they’re being subjected to coercive control or controlling behavior? That sometimes it’s so normalised in the relationship that there’s not really even an awareness that an offence is taking place. |
| AT: 10:00
11:00 | Yeah. And this is the issue around the language that we use around this kind of conduct. So, certainly in times gone past many, if not most, people would’ve seen physical violence as something that they just have to endure, and that’s how it goes, and they don’t really mean it, but that’s sort of what’s part of a marriage. And far more these days, overwhelmingly I think the vast majority of people understand that’s not acceptable. And even if someone sees that as being “part of a relationship”, it’s not. And it’s absolutely unacceptable. The conversation has moved a lot from that, and most people, I think, would very comfortably recognise physical violence as being absolutely unacceptable and something that needs to be dealt with when it comes up but coercive control is sort of a few steps behind that process. And a lot of people don’t necessarily recognise that as being domestic violence in the ordinary sense of that word. Now, of course, something we’ll come to shortly in our conversation is that hasn’t been something that’s recognised in terms of criminal offending. Whilst in the past many people have swept physical domestic violence under the carpet, and whilst these days it’s coming to the fore, far more and a far smaller proportion of the community will be willing to excuse physical domestic violence. There’s a far broader portion of the community who don’t see the coercive control side of it as really being such a big issue. And I think that’s part of what this bill is trying to achieve. It’s trying to move that conversation and trying to move those perceptions to recognise that coercive control is a very serious thing, and something, even though it doesn’t literally result in physical injuries, is in many ways far more traumatic for the people that suffer as a result. That’s sort of, I hope where the conversation and the community is moving in that respect. |
| DT:
12:00 | It’s so interesting because you can see the way that language and those values change even over the 15 years that you’ve been in practice, Andrew. If you look at the title of the 2007 Act Crimes Personal and Domestic Violence – “Violence” – Act and of course we’re now moving towards a broader concept of domestic abuse in the current legislation. Now let’s talk about the current legislation. As we mentioned at the top of the episode, it creates a standalone offence of coercive control in the context of current and former intimate relationships. What are the elements of this new offence? |
| AT:
13:00
14:00 | Sure. And something important to recognise right at the start of this conversation is that coercive control is a very, very different offence from other more standard criminal offences that we see prosecuted every day. So, you think about a common assault where the allegation is there was an assault, an unwanted physical touching, and there was no consent to what occurred. You think about assault occasioning actual bodily harm, where there’s an assault and there’s an injury, actual bodily harm, and again, there’s not consent to what occurred. You think about intimidation, where there’s some act or word used by the person, which causes a fear from the victim. There’s a clear act and a consequence, and often a necessary mental element, or mens rea the criminal lawyers call it. Coercive control is very different to that, and this is part of the challenge of creating legislation around that sort of conduct, because coercive control is insidious that’s the word that’s used correctly and commonly in the community but the fact it’s insidious makes it very hard to craft legislation that really addresses the sin as it were. Because coercive control isn’t necessarily about one act. It isn’t even necessarily about an act at all. It’s about a pattern of control that occurs in a relationship. Now, that doesn’t make it any more morally defensible, but it does make it very difficult to craft legislation that can address the sin, as it were, without simply casting this incredibly broad net to capture all manner of conduct that’s not really intended to be captured. So, what the legislation that’s been passed in New South Wales attempts to do, is to address what the legislation calls abusive behavior, and then make that illegal, and try to then put structures around separating ordinary reasonable conduct from conduct that needs a criminal sanction. Now, the legislation, I should say in fairness, does the best it can, and I think it is very good legislation that is as good as it could be in terms of addressing the conduct but it’s always going to be incredibly challenging to craft something that denounces and punishes the conduct that it’s sought to be denounced and punished without overstepping into policing conduct that really shouldn’t be policed. It’s a very difficult area to craft legislation in respect of. |
| DT: | Absolutely. Now the elements of the offence. |
| AT:
15:00 | So, the offence that’s been passed is an offence of abusive behavior towards current or former partners. And what the legislation says is if a person engages in abusive behavior towards a person with whom they are an intimate partner, and generally speaking, that’s a spouse or a girlfriend or boyfriend, and intends that conduct to coerce or control the other person then they commit an offence. Now, abusive behavior is defined as violence or threats or intimidation of the person or coercion or control of the person. Now, those are in many ways vague subjective terms. And what the legislation seeks to do is then give a number of examples about the kind of conduct that might constitute that coercion or control in particular. |
| DT: | And then there’s sort of examples within examples. |
| AT:
16:00 | That’s true, and there’s a real, and I hate to use this term, but a gray area between conduct that is entirely normal and entirely defensible, and conduct that should be policed and punished. So, a good example is imagine a husband and a wife where the wife is working very hard and finding work very stressful and very difficult, and isn’t coping with the stress of the job. A responsible and kind and loving husband might, well say, “well honey, maybe the best thing for you to do is to stop working and you can be a housewife or do some other work or look after the family, whatever it might be. Be a full-time mum and that’s how our family can work“. Now, that’s a normal, responsible, helpful suggestion to make, perhaps. On the other hand, imagine the same situation, but a husband is concerned about the people at his wife’s work who are speaking to her about his conduct and are influencing her to make complaints. And that husband says to her, “well, maybe you should stop work and be a housewife and look after the family“. Now, in that circumstance – those two examples – there’s the same conduct, but how do you differentiate between the former who’s doing the responsible, kind thing by suggesting his wife stop working and the latter who is trying to separate his wife from her support structures or her friends and family. |
| DT: | Especially when, as you’ve said, that element of intentionality of mens rea is less an important part of the offence. |
| AT:
17:00
18:00 | Yeah, exactly. So, conduct that is reprehensible – someone who’s trying to separate a person from their support structures and their friends – from the outside can look exactly the same as someone who’s trying to make a suggestion that might help their partner. Now, that’s not to say this area shouldn’t be policed, it’s to recognise the challenges in trying to differentiate proper responsible conduct from what should be criminal conduct. And that example that sprung to my mind in terms of the real challenges with criminalising this conduct. Because you’ve seen a lot of different ways that different countries and different states around Australia have tried to criminalise this conduct. Some countries or states have crafted a really specific piece of legislation that is so focused on a certain thing and is so many different elements rolled in that it becomes almost impossible to prove. And other places have crafted this really broad, almost airy-fairy legislation, which is great in theory, but then sort of just says, “well, police will work it out and they’ll work out who should be charged“, which is problematic because just by best intentions, police don’t always make the right choice. And it’s not really appropriate to have an offence where you just figure police will charge the right people and it’ll work out fine in the end because regrettably, experience shows that’s not the case. And that’s the real challenge with crafting legislation in this area because it is insidious and it is hidden, but it’s also subjective and it’s also difficult to, from the outside, craft some legislation that really drills down to the core of the conduct that we’re trying to address. And that’s why it has been historically so, so difficult to criminalise coercive control. |
| DT: | Absolutely. And on that same gradient or that same spectrum, you also have conduct, which is probably unpleasant or maybe not the way you would conduct yourself in a relationship, but which doesn’t rise to the level of criminality. |
| AT:
19:00 | That’s exactly right. And there’s people who are quite happy to take, for example, a more submissive role in a partnership. Now again, submissive is a loaded term because there’s submission and there’s coercion and there’s people who are happy to have their spouse take the lead. And there are people who are battered, as it were, to use a perhaps imprecise term, but are battered to that same role. Now, the thing with criminal legislation is it needs to be specific. A criminal prosecution is all about what are the elements of the offence, what are the things, the police or the DPP as a case maybe needs to prove beyond a reasonable doubt to prove the offence? Criminal law is an area where specificity is really important but with coercive control, we’re trying to criminalise a far more subjective conduct. And in many ways, coercive control isn’t something that’s really well suited to criminalisation. That’s not to say it shouldn’t be criminalised just to say it’s really difficult to do it because fundamentally it’s one of those things where, “well, you know it when you see it“, which is good and well but a judge or a magistrate who’s applying specific clear criminal statutes can’t just know it when they see it. They need to consider whether the elements of the offence are proven beyond a reasonable doubt. And that’s really the challenge that I think the New South Wales government has had in trying to craft something that balances the subjective nature of coercive control with, on the other hand, the need to be really specific in criminal statutes that will be applied in our criminal law courts. |
| DT: 20:00 | Do you think then we’ll really see an evolution of the way this offence is identified and prosecuted as we start to see superior court decisions on the sort of outer bounds of this defence? |
| AT:
21:00 | Look, I hope so, but again, there’s only so much that the courts can do because of course, all courts can do is interpret and apply legislation. And legislation you can read on its face and what it means on its face. The courts will do the best they can to interpret legislation, and while courts can and do have regard to the intentions of legislation and legislation is interpreted through the prism of the goals and the intentions of the legislation. At the end of the day, the text of the legislation takes priority. The courts can only interpret and apply legislation on its face. So, I have no doubt that the courts will do the very best they can to apply the legislation in a common sense and reasonable way but you can’t have a circumstance where courts just prosecute people who in the eternal wisdom of the bench is deserving of prosecution. The person can only be prosecuted for a criminal offence that’scommitted as per legislation that exists. So, yes, courts can temper these things and can interpret them in a common-sense sense, but there’s only so much you can do when specific, clear – hopefully clear – offences exist on the books. |
| DT: | Now, we talked about this a little bit already, but it sounds like the new bill is really criminalising conduct that previously didn’t neatly fit into an existing offence. |
| AT: | That’s true. I agree with that. |
| DT: | Can you tell me a bit about how before this bill was passed and received assent, and indeed how things will continue to play out until 2024, how this sort of conduct is currently dealt with, if at all by the current sort of criminal law legislative framework? |
| AT:
22:00
23:00 | So, the short story, it’s not and not really. There are few offences that capture some of the conduct that might be characterised as coercive control. So, for example, in New South Wales, there’s an offence of intimidation, but that requires proof that you caused a person to fear for their physical or mental safety. And whatever conduct you did was done with that intention. So, the obvious example is a death threat. If you say to your partner, “if you do X or you don’t stop doing X, I will hit you or I’ll kill you, or I’ll do whatever it might be“, that’s intimidation now that in many ways is coercive control but it’s a small slice of what we now characterise as coercive control. There’s another offence, which is a Commonwealth offence of using a carriage service to, amongst other things, menace or harass a person or in an offensive way. And again, that captures some of what would otherwise be coercive control but our legislation typically in the past has been quite narrow in what it’s done. And in many ways, criminal law should be narrow, it should be targeted but this new offence of abusive behavior really drastically widens the scope in relation to the sort of conduct that can be captured. And of course, that’s a feature that’s not a bug. That’s what it’s meant to do but the difficulty is as soon as you say, “we need to be less focused and we need to be broader in the conduct, we seek to capture“, you immediately bring in enormous amount of grey because there’s a recognition that the specific offences and the specific statutes we have at the moment aren’t doing the job but it isn’t necessarily the case that just by throwing the floodgates open that you improve the situation. And that’s really the challenge that the New South Wales government has had in trying to criminalise coercive control. |
| DT: | Now you’ve said that there’s sort of a spectrum on which different jurisdictions fall in their response to this issue. On the one hand, there’s the overly specific or prescriptive version of the offence, which doesn’t address a sufficiently broad range of categories. |
| AT:
24:00
25:00 | And if I can jump in a former version of this legislation that was floating around in New South Wales previously was incredibly narrow and criminal lawyers liked it in the sense that it’s set up really clearly A, B, C, D, E, F, and G. And it was clearly understandable, and it properly addressed the conduct that was sought to be addressed but the problem is because it was so narrow, almost impossible to prove. The resources and the time and the evidence that would’ve been required to prove that offence that was originally proposed. It was just impossible. Not quite impossible, but incredibly difficult. And I think many criminal lawyers looked at that and said, “well, no one’s ever going to be prosecuted for that“. And they were right but as you were saying, before I interrupted, when you swing the other way and just say, “well, you know, bad conduct should be illegal“. That’s entirely sensible and reasonable on a macro level but when you then come to think, “well, how is this actually going to be applied?” You reach a situation where, what it comes down to is anyone who the individual police officer attending in that moment thinks should be prosecuted and thinks should be punished, should be, because when you have these almost airy-fairy pieces of legislation you essentially say, “well, we’ll just leave it up to the prosecutors to decide who should be punished“. And in an ideal world, with perfect humans and where everyone did their job well and honestly, and everyone was entirely reliable to properly and sensibly and fairly apply their discretion, then we’d be fine. Human nature being what it is, that’s not always how it works out. And the problem is it’s not a matter of trying to find a middle ground. It’s a matter of taking two really big problems with policing this area and trying to balance them as best you can. It’s not a matter of if we just shoot for the middle we’ll be fine. It’s just that there’s two huge problems and addressing one negatively impacts the other problem. All we can do is try to find a middle ground and then as a legal community, do the best we can to try and police it but it’s not resolvable at all, really. It’s about trying to find the best position we can and as participants in the criminal justice system are trying to deal with it as best we can. |
| DT: | It sounds like from a policy perspective- |
| AT: | It’s a nightmare. |
| DT: 26:00 | Absolutely. And it sounds like the parliament has really, in that trade off between breadth and specificity, erred on the side of breadth. Would that be fair to say? |
| AT:
27:00 | Yes, I would agree with that, but I mean, no matter which side you’re coming from or what your sort of starting point is, there’s plenty to criticise and that’s only because there is no good solution. There’s best that can be done in the circumstances.The fundamental problem is coercive control isn’t really amenable to criminal policing. Not to say it shouldn’t be, just to say coercive control doesn’t really fit within how our criminal justice system works. Criminal justice is focused on an act and an intention, maybe a consequence, something like that. Coercive control refers to courses of conduct and attitudes and the way someone does something. There is a really significant disconnect between the issue of coercive control and the criminal justice system. And I don’t have an answer for that problem. It’s not something that’s easily dealt with. It’s something that’s in fairness to this act, I think it does a really good job of trying to balance those things but fundamentally, it’s not a problem that’s really amenable to an easy solution. And the real test is going to be waiting to see how this act is firstly applied by police, who lay charges, and then by the courts in trying to weigh up the various things that need to be weighed up in deciding who should be convicted one and then two punished for these offences. |
| DT: | Now you mentioned the course of conduct, let’s talk about that particular element. if the offence requires that the offender engage in a course of conduct, does that mean that coercive control has to occur over several repeated instances of conduct, or is a single instance of conduct sufficient? |
| AT:
28:00 | Sure. So, the legislation says it needs to be engaged in repeatedly, or continuously. Now, that is coercive control. It isn’t something that occurs on one day, it’s a pattern of dealing with, usually your domestic partner. It can’t be, generally speaking, just one act, which may well be some other offence, certainly intimidation, perhaps, or an act of violence but to fit within the abusive behaviour and the course of conduct as set up in the act, it does need to be something that’s engaged in repeatedly or continuously. Because that is really where the rubber hits the road because it’s a manner by one partner of controlling another person and that necessarily is something that occurs over a course of time. |
| DT: | Absolutely. Now it’s interesting this discussion about the trade off between breadth and specificity, because on the one hand we’ve mentioned that the offence really does seem to err a bit towards breadth over specificity. On the other hand, some critics of the legislation are saying that it’s a little too specific in limiting the offence to current or former intimate partners. What do you think about that? |
| AT:
29:00 | Yeah, so this is a really hard question. Certainly, there’s on one hand, you want to make sure that as a legislature that inappropriate and improper conduct is addressed and is punished and is prosecuted. On the other hand, you don’t necessarily want to cast an incredibly broad net to capture everything that the person laying the charges thinks might require capturing. Now, coercive control is being criminalised as I understand it, because of the manner in which it exists and is carried out in the community within domestic partnerships. I’m sure there are circumstances other than intimate domestic partnerships where coercive control exists. |
| DT: | And one that comes to mind is elder abuse, for example. |
| AT: | Sure. Absolutely. There are some offences that can address elder abuse but that’s really a whole different problem, unfortunately, and a whole different set of issues that are sought to be addressed or should be addressed perhaps is a better way to put that. |
| DT: | Maybe a podcast for another day. |
| AT:
30:00 | Yeah, well, exactly, that’s right but the issue of coercive control really exists predominantly in intimate domestic partnerships. Now, it can always be argued that some legislation should be broader or should capture some other conduct, but I think what the legislature’s chosen to do is address it squarely towards the sort of coercive control that exists in that intimate domestic partnership, so, boyfriend, girlfriend, husband, wife, whatever it might be. Should there be offences addressing elder abuse? Sure, absolutely. And there’s, as you say, another podcast in what that should look like. There’s all sorts of abuse of children that exists outside the current offences that we have in terms of sexual abuse and violence towards children. And that’s a very reasonable and valid and fair point but that’s, that may be something that’s better addressed by specific offences that address the sort of conduct that should be denounced in that particular area rather than trying to, as it were, shoehorn those other relationships into legislation that’s really crafted to address the sort of conduct that exists in those domestic relationships. So, there’s no doubt that there are other kinds of relationships that would benefit from offences directed towards those, but I would’ve thought specific offences directed towards those relationships is a far better way to do it than shoehorning those into this legislation clearly drafted for intimate domestic relationships. |
| DT: 31:00 | Now, the legislation does introduce this new offence into the Crimes Act, but it also introduces some amendments into the Crimes (Domestic and Personal Violence Act), the 2007 legislation. What’s the impact of those amendments? |
| AT:
32:00 | So, there’s a whole lot of different offences that are characterised as domestic violence and that has downstream consequences. So, for example, if you are convicted of an act of violence against your domestic partner, not only is it a criminal offence with all the same sort of criminal consequences that flow from any other kind of violence, but things such as apprehended domestic violence, are affected by a finding of guilt on a domestic violence offence. So, for example, say that you’re convicted of a common assault against your domestic partner. What the legislature requires is that an Apprehended Violence Order be taken out when the charge is laid. And then if and when there is a finding of guilt on that common assault charge, the court has to make an Apprehended Domestic Violence Order for the protection of the victim of the criminal offence from the perpetrator of the domestic violence offence. Now, amongst other things, what the amendments to the Domestic and Personal Violence Act do is fold this conduct quite appropriately and sensibly into the Apprehended Domestic Violence order scheme, as it were, to make sure that it’s dealt within the same way. Coercive control isn’t an act of violence, quote unquote. It doesn’t involve hitting or striking necessarily but- |
| DT: | It’s not an act of physical violence. |
| AT:
33:00 | No, well exactly but what it does do is recognise, it is an act of broader violence, you might call it. And many people have said, and the research shows this, that coercive control is something that in many people’s experience causes far more harm than the more physical, more obvious acts of violence that the criminal law is far more accustomed to dealing with. TIP: In that 2021 survey conducted by the Australian Institute of Criminology that we mentioned earlier, coercive control is defined according to an earlier definition by Stark – which is that “coercive control refers to the micro-regulation of women’s lives by an intimate partner (usually) in order to maintain dominance or control”. In the executive summary of that survey, the authors report that 11% of respondents had experienced coercive control in the 3 months before the survey. In the survey, a respondent was considered to have suffered coercive control if they had experienced 3 or more of certain types of conduct. The reason it is 3 or more is related to the idea of a ‘course’ of conduct that we discussed earlier. So, what many of the amendments do is seek to recognise coercive control as being an act of domestic violence, even though as you say, it’s not an act of physical violence, to ensure that the victims of coercive control are protected and dealt with in the same way as those persons who’ve suffered the more recognisable or more commonly recognised acts of violence that we deal with in the criminal law. |
| DT: | So, the amendments basically allow those pre and post trial protections to apply to victims of coercive control as well? |
| AT: 34:00 | Yeah, that’s exactly right. And there’s all sorts of different recording and all sorts of different reporting that occurs, arising out of that. And the legislation quite properly attempts to fold this new offence into all those same sort of structures as we have for the more recognisable acts of physical violence, the criminal laws far more accustomed to dealing with. |
| DT:
35:00 | Now we’ve talked a little bit about some of the practical challenges in identifying and prosecuting this conduct, especially in earlier drafts of the legislation. One issue that comes to mind is an evidentiary one in the sense that even in those more overt forms of physical violence, there are examples of complainants not wishing to testify, wishing to excuse the behavior on the part of the offender. I imagine with a coercive control offence where the criminal behavior is not physically violent, where that might be a normalised behavior in that relationship, that challenge of securing evidence from a complainant or even securing a complaint might be extremely difficult, from an evidentiary perspective and really create some challenges in proving the elements of the offence. |
| AT:
36:00
37:00
38:00
39:00 | I think that’s right. I mean, there’s been, and I’ve done criminal law for a long time, through my entire career, there’s been an enormous problem for police and the DPP and the prosecuting bodies generally in, as it were, getting complainants to court. A lot of people who on Monday will complain about a domestic violence offence, will for whatever reason, by Tuesday be persuaded that it’s something that should be dealt with by the family. And it’s not something that the police or the community generally have any role in addressing. Now that’s of course, not something that is correct and not something that should be allowed to occur, but it’s enormously difficult even when you focus just on physical violence. TIP: According to the NSW Bureau of Crime Statistics and Research, in 2021, NSW police recorded 32,133 domestic violence assault incidents. Also in 2021, 15,938 people appeared in court for domestic violence assault. However, 2,813 (or 17.6%) people had their charges withdrawn. There’s an enormous difficulty in getting those complainants to court because of the unbearable pressure many come under from other persons who want to persuade them not to give the evidence and not to go to court and relay what occurred. Now, that’s difficult enough when you’re dealing with persons who’ve just suffered domestic violence and physical violence but how much harder it, I’m sure, will be for a person who suffered from coercive control because the very nature of the offence they’ve been a victim of is a controlling offence. The offence of coercive control or the commission of an offence of coercive control really shows quite clearly that the offender, whoever that might be, is exerting control over the complainant. And in those circumstances, it’s easy to understand how when a hearing comes up, you know, nine months later, it can be very difficult to get that complainant to court to give a truthful account of what occurred. Now, all of that then makes it very hard to prove these offences where, of course, they need to be proved beyond a reasonable doubt. And it’s really all but impossible to prove the offence without the attendance of a complainant at court to give their evidence and stand up behind that evidence under cross examination. Now, I don’t have any really easy answers to those problems because there are enormous backlogs in our courts for all manner of reasons, which again- whole other podcast but in circumstances where much like your standard or your more recognisable physical violence offence, in the vast majority of cases, these things do occur behind closed doors in secret, where it’s only the word of the victim who’s able to explain what happened to a magistrate. It’s incredibly difficult to prosecute and there are enormous practical problems that arise in trying to get the evidence before the courts. And again, there’s not really any easy answers for that. There’s certainly changes that have been made recently where, for example, police generally take what they call a DVEC – a Domestic Violence Evidence in Chief – a video recording from the complainant very shortly after the offence where he or she is able to explain what occurred. And that’s a really positive change but all those things still require a complainant, 6, 9, 12 months later to have the personal fortitude and the resilience to be able to come to court and give the evidence. These are huge problems. These are really significant difficulties in prosecuting any domestic violence offence, let alone an offence that’s entirely centered around the control of the complainant by the perpetrator. Now, there are things that can be done and what’s often done by New South Wales police, again not inappropriately, is that taking out of an Apprehended Violence Order that then forbids contact from the defendant. And that’s good and well, but if the complainant doesn’t want to be cut off in that way, if the complainant feels that they need the defendant in their life, for good reason or bad. Whether it’s a financial thing or a support thing or a relationship thing, it’s good and well to say, “well, let’s forbid the defendant from talking to the complainant” but where the complainant doesn’t want that to occur, that raises a whole lot of other really challenging problems that aren’t amenable to simple solutions. I wish I could say, “well, obviously if we change X and Y we’ll solve the problem man“. I can’t because the problems aren’t as simple as that. I guess what I’m trying to say in a very roundabout way is, it is difficult to prosecute these offences, especially where complainants in the medium term don’t want necessarily the defendant prosecuted and whether that’s because they are being coercively controlled, or something even more subtle than that is for others to speculate on. I don’t know but these offences are really, really, really hard to prosecute and there’s no easy solutions to that problem. |
| DT:
40:00 | You were talking before about how the coercive control offence, or the abusive behaviour towards the intimate partner offence to use the language of the legislation really doesn’t resemble many other criminal offences. There’s no guilty act, there’s no mens rea in the traditional sense. There is of course a guilty act, but it’s a course of conduct rather than a definable- |
| AT: | Yeah, it’s hard to nail down to a single thing. There’s no punch, there’s no kick, there’s no single word that’s used. It’s a course of conduct. It’s a- I shouldn’t say the vibe that makes light of the situation, but it is in many ways a vibe. It’s a way in which a person deals with another person. And that’s- it’s hard to nail down. |
| DT | Yeah. |
| AT: | It’s hard to prove |
| DT: | It’s really defined by its effect, or it’s defined by its consequence- |
| AT: | Intention even. |
| DT: | In an offence, which itself doesn’t carry that element. Do you think that wholly different approach to defining the offence is an attempt by the legislature to respond to the challenge of proving some of these things without a cooperative complainant? |
| AT: 41:00
42:00
43:00 | I think that’s right, and I think the legislature has done, with all due respect to them, the very best they could in addressing those issues and the New South Wales government’s had a very long, very drawn out, very detailed consultative approach to how to criminalise this conduct. Is the law perfect? No, there’s any number of criticisms you could make, but what they’ve tried to do is balance a number of the criticisms I’ve spoken about, a number of the issues I’ve spoken about to find something, something that will go some way to addressing these issues. As I said, is it perfect? No, but does a pretty good job in all the circumstances. In many ways, as always, the proof’s going to be in the pudding, the devil will be in the details. It’ll be about how it’s then applied. Who ends up getting charged? How do police use their discretion in deciding how they should be charged? Importantly, how much resources will be put into actually investigating and proving this sort of conduct? It’s far harder to prove a course of conduct than it is to prove a punch where there might be an injury and a complaint and a noise. If police need to prove a course of conduct that requires effort and time and resources, and heaven knows, that’s something police often struggle with because there are, again, regrettably, I’m not making light of this, but there are thousands of domestic violence offences that occur in Sydney, I’m sure every day of the week. And that’s not to make light of that, but to say, we are now saying we want police to investigate and prosecute these subtle, detailed longitudinal offences that aren’t susceptible to a 10-paragraph statement on a criminal charge. Now, will police be resourced to do that? Will the poor probationary constable going out to our house in whatever suburb at 3 in the morning have the resources to speak to a complainant and spend the hours that will be required to take the detailed statement to prove coercive control and then go and investigate the text messages and download the emails and speak to the neighbours and speak to the friends. I mean, it’s good and well to say we have this new offence, but are there going to be any resources to investigate these offences and gather the evidence that is needed to prove this sort of conduct? This is something that’s going to require time and is going to require resources from overworked, underappreciated police who have another 50 domestic violence complainants who are all screaming for assistance. I don’t know whether there’s going to be the resources to properly prosecute these things. And what that gives rise to is as occurred in Great Britain at risk, where coercive control becomes more of a tack on offence. That where there is a clear identifiable assault, for example, police might, if the complainant makes some sort of complaint about control, sort tack on the coercive control offence as a plan B almost. If that occurs, well, are we really achieving anything? If coercive control is only used as a tack-on offence, is it really going to help any people suffering from these offences, these criminal offences? Or is it going to be just something that police add on where it seems like a good idea? |
| DT: | It’s only deterring the conduct that’s already policed. |
| AT:
44:00
45:00
46:00 | Yeah, that’s right. If the new offence isn’t going to result in people being prosecuted, who weren’t going to be prosecuted anyway for something else, then what’s the point of it? That’s not to say that there’s no point in legislation just to say that the effort and the time required requires resourcing. TIP: Andrew is worried that due to the difficulty of acquiring evidence to prove coercive control, the offence in NSW will see the same fate that it’s seen in the UK. The offence is known as Coercive or Controlling Behaviour (or CCB for short). In 2021, the UK Home Office undertook a review of the coercive control laws. In 2019, there were 584 prosecutions where CCB was the principal offence. Over the same period, there were 528 prosecutions where CCB was a non-principal offence. It is often prosecuted alongside various other violent crimes, which “suggests that where there are specific incidents of physical violence, damage or sexual assaults these tend to be charged as a distinct offence alongside CCB, instead of as part of the pattern of controlling or coercive behaviours”. The report suggests this could indicate that it is easier to prosecute CCB offences alongside other offences. This reiterates what Andrew has just said about being difficult to gather evidence for and therefore often being ‘tacked-on’. And if, again, that poor 22 year old probationary constable who goes out to some house at 3 in the morning, if they don’t have time or don’t have the resources to properly investigate what they might recognise as coercive control, because there’s four other people with physical acts of violence, screaming of their attention, well then I don’t know necessarily, that this good offence is necessarily going to result in people who need prosecuting being prosecuted. Again, it’s easy to say, well just spend more money because it’s not directly my money but this is a new offence, it’s a whole new category of criminal offending. If you’re not going to resource, police to investigate it, well, then you’re not necessarily going to actually achieve anything in protecting the people suffering from this really serious conduct. |
| DT: | And we should say resourcing aside, resourcing is one question. The training to investigate and identify this offence is another. Now, there’s, at the time of recording, a little over a year before this offence effectively becomes live in early 2024. Now is that a common approach to the introduction of new offences, this sort of lag time? |
| AT:
47:00
48:00 | It’s not uncommon, but it is a particularly long lag time, and I think that recognises the real change in perspective that needs to occur. So, I’ve done criminal law for a long time, I see this stuff from a mile away, I’ve had that experience. A young police officer who hasn’t had the life experience many others have had, might find it really hard to recognise this sort of conduct. Not because they’re stupid, but because it’s just not something that if you haven’t had that experience and that perspective on criminal law, you might not necessarily see. And the same goes for every other player in the criminal law jurisdiction. There’s a recalibration that almost needs to occur if you’re going to be able to, first of all recognise the conduct when you see it, but then understand the way it happens and where. Think about police again, where they might need to look to find the evidence of coercive control. Police receive an enormous amount of training in dealing with violence and this can fold into that and be a part of the training they receive but a lot of work’s going to need to be done to assist the prosecutors in the broader sense of that word, police and others, to recognise the conduct and then for the courts to work out how they’re going to deal with that conduct. Not so much how they’re going to apply the law but work out the structures to ensure that complainants are dealt with in a sensible and reasonable and sensitive fashion. And make sure that the criminal processes are properly structured to ensure that persons who should be convicted are. This does sit outside the ordinary run of criminal offending and that means that very careful and very detailed thought needs to be given to how we’re going to prosecute it and how it’s going to be dealt with through our criminal justice system. |
| DT: | Let’s talk about defences now. The legislation includes the defence to the offence which is, I suppose, as broad as the offence itself, which is that the course of conduct was reasonable in all of the circumstances. Now how does this work from a burden of proof perspective proving or disproving that the course of conduct was reasonable in all of the circumstances. And how is reliance on this defence going to play out in practice? |
| AT:
49:00 | So, section 54E of the new legislation sets out a defence if the conduct was reasonable in all the circumstances. And the test is that if the defence is raised on the evidence, it’s necessary for the prosecution to prove that the offence does not arise beyond a reasonable doubt. That’s not necessarily unusual. Many other defences, and self defence in terms of violence being the obvious example, many other defences do require negativing by the prosecution beyond a reasonable doubt. Now, reasonable is perhaps one of the more subjective words we find in our criminal justice system- |
| DT | In our justice system, in all sorts of places. |
| AT:
50:00
51:00 | Yeah, well, that’s right. So, again, self-defence the question is subjectively, how fearful were you and then objectively, how reasonable or was your conduct? I should say reasonable in all the circumstances. Now, the legislation here folds in a defence of reasonableness, and this comes back to the example I gave earlier where I spoke about the, I’m going to use a husband example, where a husband encourages his wife to stop working. Which on one hand might be seen as being controlling because it isolates the person from their friends but if the court considers it reasonably possible that the husband in the example was doing that for the good of the wife because she was in fact overstressed or overworked or underappreciated, whatever it might be, then that content might be reasonable in the circumstances. And that’s a differentiate, from again, to use the husband example where he’s doing that in order to, in fact, isolate his partner from their friends or contacts. So, this reasonableness is folded in because what it seeks to do is have the legislation rely less upon the discretion of police to prosecute who they think butrather provides at law a defence where a court notwithstanding what the police might think, can say, “well, yes, on the face of it, this conduct was coercively controlling because the partner didn’t give their domestic partner a copy of the credit card or their own credit card to use. Or they encourage them to quit their job, or they decided, or suggested, that they should move to another state” or various other things that might conceivably be coercive control where it’s done to isolate a person. It allows for the circumstances where that act might be done for a good and proper and reasonable and defensible reason. So, that’s why it exists as a defence. It brings an enormous amount of subjectivity, however, to the prosecutions. And it’s going to ask a magistrate, or a jury of 12, to assess whether the conduct was in fact reasonable. Which would come back, I expect, when the rubber hits the road, to what the intention was of the defendant or the alleged perpetrator in doing what they did. And it recognises the difficulty I spoke about earlier where there are things that, depending on your perspective, can be entirely defensible or entirely reprehensible. And that defence seeks to carve out those persons who can’t be proved to be doing something that wasn’t entirely defensible. How will that work in practice? How will it work when you’re asking a magistrate to deal with this or a jury of 12? I’m sure there’s a hundred different opinions out there, but that’s how the defence is meant to work and that’s why it exists, I think. And again, to loop back what I said earlier, that’s part of where I think the government struck the best balance it can. It’s a very subjective defence, but it’s a very subjective offence. So, it really does, I think, do the best job possible of trying to strike that balance somehow. |
| DT: 52:00 | Now, with a defence, this broad, and you’ve mentioned how the defence really brings into play the intention behind the conduct, even if that’s not itself an element of the offence. Sometimes when we see broad defences to offences or causes of action, you know, I think about my own area of practice with unfair preferences paid by insolvent companies. A defence to that cause of action is that you had no reason to suspect, reasonably speaking, that the company was insolvent. That’s such a broad and commonly pleaded defence that it becomes a defence in every case and effectively becomes a de-facto element of the cause of action. Do you anticipate that given the breadth of this defence and the fact that the crown bears the obligation to negatise it beyond a reasonable doubt, that it will effectively become a de-facto element of the offence itself? |
| AT: 53:00
54:00
55:00 | Oh, without doubt and almost any act, depending upon how you characterise it, is capable of being justified in that way. Now, of course, the court will disagree. I’m not saying the offence can’t be proved, but almost every act that could be said to be coercive control, there is an excuse that could be proffered that if accepted as being reasonably possible could be a defence to charge. So yes, absolutely it will end up being a quasi or a pseudo element of the offence. Now, this comes back to the international experience where I know for example, in the UK there’s been an incredibly small number of people prosecuted with their version of the offence, and an even smaller, almost minuscule portion of people prosecuted for just the coercive control offence. And I say that to come back to what I said earlier about being a tack-on offence in terms of identifying and prosecuting people who wouldn’t have been prosecuted anyway, the legislation in the UK has been, in many ways, almost a failure because it hasn’t resulted in additional people being prosecuted. In the New South Wales community, there’s no doubt that there are people who’ve never committed what would otherwise be a criminal offence no act of violence, no act of intimidation. and they haven’t used a carriage service to menace their partner, they’ve just controlled them in a really awful reprehensible way. And it’s really those people that are, I take it, the target of this legislation because it’s persons for whom there isn’t some other criminal offence, we could use that we’re really trying to ensure there is an offence to prosecute them for but those persons where there isn’t some other offence, gosh, almost everything they do, I’m sure is capable of being interpreted in a different way. Now, that’s not to say they won’t be prosecuted or can’t be proved just to say, I’m sure almost every single one will rely on this defence and say, “no, I wasn’t separating them from their friends,that friend is toxic, I was trying to protect them. I wasn’t limiting their access to funds, I was trying to ensure our family’s financial security is dealt with because, god love her, my wife spends enormous amounts of money and has no self-control. I wasn’t trying to stop my partner from having access to his friends by using a mobile phone, the phone was broken and I was trying to get it fixed.” This comes back to the difficulty in proving the offence. The defence does need to be there, otherwise anyone who some constable thinks should be prosecuted can be prosecuted and found guilty but the defence being there means there’s a defence available and this defence will be really hard to disprove. It comes back to the problem with criminalising really broad subjective conduct through specific narrow criminal offending. It’s hard to do, and I fear for the effectiveness of the legislation given the presence of the defence, even though it clearly needs to be there. |
| DT: | Yeah, absolutely. I mean, it does need to be there because as you said, there are examples of conduct which might, depending on the circumstances, be either coercive control, worthy of denunciation or the act of a reasonable person. |
| AT: | Yeah, that’s right. |
| DT: 56:00 | Well, Andrew, we’re nearly out of time this afternoon, but before we go, I was hoping that you could share with our listeners a practical tip about handling domestic violence matters, under the current framework, I suppose, which I’m sure will continue to be a useful practical tip in 14 months time when we’re dealing with the new offence. |
| AT:
57:00
58:00 | Sure. Look, no matter which side of the offence you’re working on, whether you’re prosecuting or defending domestic violence matters much like sexual assault offences, always, always turn on credibility, on the assumption that the complainant says it happened, and the defendant says it didn’t. In the vast majority of cases, because there’s not generally any eyewitnesses, there’s no CCTV there’s really generally very little evidence consistent or inconsistent with either version of events. These prosecutions do depend on credibility, and that’s where criminal lawyers and criminal prosecutors – that’s where we live. That’s what our job, by and large, is about, who should be believed? What version of events should be accepted? And to put it more accurately – can any version be accepted beyond a reasonable doubt? Now, again, no matter which side of the offenceyou’re working on, really, it’s going to come down to what material or what documentation, or what other evidence or whatever material it might be, whatever can be gathered together, that would tend to support your version of events that you’re seeking to put forward. Now, of course, that will depend in every different case one a whole lot of different circumstances but especially with coercive control, where it’s going to be alleged that a person has done things for a certain reason or has done things with a certain intention or has done things in a certain way, with a certain goal in mind. You’d expect that there’d be something that would tend to support that conclusion or would tend to run against that conclusion. Whether it’s a history of text messages, whether it’s a history of conduct witness by other persons, whether it’s a manner of interaction that is some way provable through some other evidence or some eyewitness, these coercive control offences, whilst they are in many ways insidious and behind closed doors, there are symptoms to use a medical term. Of course, the proof’s going to be, you know, in the pudding in due course, but I would expect that there would be some sort of evidence that would exist that would tend to either prove or disprove the conduct that’s sought to be proved or disproved. So I guess the advice for the practitioners is to not take a narrow approach to the evidence and to not take a closed minded approach to what might end up being relevant or helpful in the case, but rather to look more broadly and to see what material or evidence there might be that would tend to prove or disprove the version of events that you’re seeking to prove or disprove in that particular case. |
| DT: | That’s a great tip. Well, Andrew, thanks so much for joining me today. |
| AT: | Thank you. |
| Ross Davis:
59:00 | As always, you’ve been listening to Hearsay the Legal Podcast. I’d like to thank our guest today, Andrew, from J Sutton Associates for coming on the show. If you want to hear more about financial abuse, check out episode 46 with Laura Bianchi and Julian Charters. If you want more criminal law content, we’ve a few upcoming – so be sure to stay tuned. If you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a substantive law point. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay the Legal Podcast, as always, is brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes CPD. Finally, I’d like to ask you a favour. If you like us, please leave us a Google Review. It helps other listeners find us and that means that we can keep making great content. Thanks for listening, we’ll see you on the next episode of Hearsay. |
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