Domestic Violence Legislation

Question 1

S. 8 CDPVA –

Answer 1

Stalking
• Following a person
• Watching a person
• Frequenting the vicinity or on approach of the person's:
o Place of residence
o Business or work
o Area of social/leisure activity

Question 2

S. 7 CDPVA –

Answer 2

Intimidation
• Conduct amounting to the harassment or molestation of the person.
• Any approach made by the person by any means that causes the person to fear for his or her safety.
• Any conduct that causes a reasonable apprehension of:
o Injury to any person.
o Violence or damage to any person or property.

Question 3

S. 13 CDPVA –

Answer 3

Stalking or Intimidation
• The accused.
• Stalks or intimidates the victim.
• With intent to cause fear of physical or mental harm.

– Intention includes conduct not intended but ‘likely’ to cause fear, can also be proved if the accused was warned about their conduct or they observed the reactions of the victim from a prior incident.
– Can be admissions “I meant to scare them”.
– Prosecution not required to prove actual fear by the victim.

Question 4

S. 9 LEPRA –

Answer 4

Entry in Emergencies:
PO may enter premises if they believe on reasonable grounds the following is occurring or likely to occur:
• Breach of the peace.
• Person has suffered significant physical injury (or there is imminent danger of this).

– PO may only enter and remain on the property to stop it or prevent it from occurring, only as long as reasonably necessary to stop the offence. May need to use another power to remain and investigate.

Question 5

S. 10 LEPRA –

Answer 5

Entry for Arrest, detain or execute a Warrant:

PO may gain entry and stay for a reasonable amount of time to:
• Detain a person under an act.
• Arrest a person (under warrant or not).

– PO may search the premises for the person if they reasonably suspect the person is on premises.

Question 6

S. 68 LEPRA –

Answer 6

Proper Announcement (MASA)
PO on entry to a dwelling should:

M – Make presence known/knock.
A – Announce their office.
S – State the reason for entry.
A – Allow adequate time to comply.

– Generally relates to warrants but is considered best practice.

Question 7

S. 82 LEPRA –

Answer 7

Entry by Invitation
• PO invited in to a dwelling by any occupier may stay to:
o Investigate a DV offence.
o Prevent a DV offence.
• So long as the PO believes on reasonable grounds a DV offence is occurring, recently occurred, likely or imminent.
• PO may also exercise the following powers for the purposes of preserving evidence relating to the DV offence until such time as a s. 83 warrant is issued.

Question 8

S. 83 LEPRA –

Answer 8

Entry by DV Warrant, entry denied or authority to remain refused:

• If PO believes on reasonable grounds a DV offence is occurring, recently occurred, likely or imminent.
– AND –
• It is necessary to enter the premises to:
o Investigate a DV offence
o Prevent a DV offence

• PO may apply for a warrant if denied entry or refused authority to remain in premises.
• Warrant allows police to enter and remain in the premises.

Question 9

S. 84 LEPRA –

Answer 9

Obstruction or Hindrance of Warrant:

It is an offence to hinder or obstruct PO in the execution of a warrant.

Question 10

S. 85 LEPRA –

Answer 10

Powers that may be exercised on Entry to Premises (PIRAF):

PO who lawfully enters a dwelling under this part may:
P – Prevent a DV offence
I – Investigate a DV offence
R – Render aid to any person injured
A – Arrest a person
F – Firearms (inquire, search and seize) ← MUST BE DONE, not optional.

PO may remain in dwelling only as long as necessary to perform the above. Section authorises the search and seizure without warrant of any firearms if informed there are firearms present.

Question 11

S. 86 LEPRA –

Answer 11

Police may enter and search for firearms:

• If PO has reasonable suspicion a DV offence is occurring, recently occurred, likely or imminent
– AND –
• PO is informed that no firearms exist in the dwelling BUT PO reasonably suspect otherwise.
• PO must apply for a search warrant.

Search warrant allows PO to:
• Enter and search the dwelling concerned for firearms.
• Seize and detain any firearms found in the dwelling.

Question 12

S. 87 LEPRA –

Answer 12

DV Search and Seizure Powers “being used in the DV offence”:

PO who enters a dwelling under this act may search, seize and detain a:
• Dangerous article.
• Dangerous implement (other than a laser pointer).

So long as the PO believes on reasonable grounds that the dangerous article/implement is:
• Located within the dwelling
– AND –
• Currently, was previously or may be used to commit a DV Offence.

Question 13

S. 3 LEPRA –

Answer 13

Dangerous Article (Prohibited SAFE).

P – Prohibited under the Weapons Prohibition Act.
S – Spear gun.
A – Device (not a firearm) capable of discharging any irritant or capable of bodily harm.
F – Firearm, spare barrel, ammunition.
E – Detonator or fuse capable of use with an Explosive or detonator.

Question 14

S. 3 LEPRA –

Answer 14

Dangerous Implement (Dangerous MILK).

D – Dangerous article.
M – Made or adapted for the use of causing injury to another.
I – Intended to menace, injure or damage property.
L – Laser pointer.
K – Knife.

Question 15

s27 CDPVA:

Answer 15

Provisional AVO:

Police apply for this AVO if there are immediate fears for the safety of the victim/PINOP.
• In force until revoked, withdrawn or dismissed or when an interim/final order is served on the defendant (s32 CDPVA).
• AVO granted by a senior police officer, Sgt. or above, or the central justice panel.
• AVO in effect from the moment served to the defendant (record time and notify VKG).

Question 16

s49 CDPVA:

Answer 16

Non-Urgent AVO:
Is not an order but a summons to appear before the court for an application to seek an order.

• There must be no immediate safety concerns or a provisional AVO is declined.
• Not appropriate for child abuse, stalking, intimidation or a domestic violence offence.
• Can be applied for by the PINOP at a local court.

Question 17

S. 27 CDPVA –

Answer 17

Police Obligation to Apply for Provisional AVO (Dead Shit Carer):
(1) PO must apply for a Provisional AVO if there is reasonable suspicion the following is occurring, has occurred, is imminent or likely to occur:
• D – DV offence.
• S – Stalking / Intimidation.
• C – Child abuse offence.

Question 18

S. 49 CDPVA –

Answer 18

Police Obligation to Apply for Non-Urgent AVO:

Same criteria as s. 27 but applies to Non-Urgent AVO’s.

Question 19

S. 48 CDPVA –

Answer 19

Making of Application for Non-Urgent AVO:
An application for a Non-Urgent AVO can be made by the following:
• PINOP.
• Guardian of the PINOP.
• PO.

– In the case of a child PINOP, only a PO may make the application.

Question 20

S. 13A LEPRA –

Answer 20

Identity of the defendant of an AVO required to be disclosed:

PO may request a person whose identity is unknown to disclose their identity (name and address) for the purpose of serving an AVO.

Safeguards must be met, LEPRA 202 IPE.
Apply LEPRA 203 and warn the person they are required to comply by law.
Apply LEPRA s19, to obtain proof of identity.

Question 21

S. 14 CDPVA –

Answer 21

Offence of contravening an AVO:
A person who knowingly contravenes a condition specified in an AVO is guilty of an offence.
‘knowingly’ mean proving the service of the AVO. Either by statement/affidavit of service, notebook entry, or proof it was served in court.

Minor indictable offence, 6 month statute of limitation.

A victim commits no offence by inviting the defendant to breach an order, the defendant is solely responsible.

Question 22

S. 37 CDPVA –

Answer 22

Ancillary Property Recovery Order:

Allows the defendant to remove personal property (whom legal claim of right exists) from a dwelling co-occupied by the PINOP under the following conditions:

• Access to be at times suitable to the PINOP and the PO.
• Defendant to be accompanied by a PO or another specified person during removal.
• The order must specify the property to be retrieved.
• No force can be used.

Question 23

S. 89 CDPVA –

Answer 23

Detention for Making/Service of Provisional/Interim APVO – “regular AVO”

PO who is making or about to make an application for a
Provisional or Interim APVO may give a direction for the defendant of the AVO to:
• Remain at the scene of the incident.
• If the person has left the scene, to remain at another place where the PO can locate them.

– PO may detain the person if they refuse any of these directions.

Question 24

S. 89A CDPVA –

Answer 24

Detention for Making/Service of
Provisional/Interim ADVO – “domestic AVO”:
PO who is making or about to make an application for a Provisional or Interim ADVO may give a direction for the defendant of the AVO to:
• Remain at the scene.
• Remain at another place where the PO can locate them.
• Go to and remain at a location agreed upon by the person.
• Go to and remain at a police station.
• Accompany a PO to a police station and remain there.
• Accompany a PO to another location agreed to by the person.
• Accompany a PO to another location (whether or not) agreed to by the person for the purposes of medical treatment.
– PO may detain the person if they refuse any of these directions.
– PO may detain the person in a police vehicle for reasonable amount of time to transport them.

Question 25

S. 90 CDPVA –

Answer 25

Detention for Variation/Service of AVO to a Reasonably Suspected Person: PO who reasonably suspects a person is the defendant of an AVO may: • Direct the person to stay at a particular location for purposes of serving an AVO. • Detain the person at the location, or a police station for the purpose of serving of the AVO.

Question 26

S. 90A CDPVA –

Answer 26

Period of Time – Direction to Remain or Detention: PO may direct the person to remain or detain them for a reasonable amount of time: • To have the APVO or ADVO created, varied or served on the defendant. • Not exceeding 2 hours or whichever is lesser (excludes travel time to police station).