Criminal defence lawyers are often faced with the situation where a person for the protection of whom an apprehended violence order (or 'AVO') is made engages in conduct that may cause a person against whom an AVO is made, known as the defendant, to breach the conditions of the order – placing the latter at risk of committing the criminal offence of contravening an AVO under section 14 of the Crimes (Domestic and Personal Violence) Act 2007 ('the Act') – which carries a maximum penalty of 2 years in prison.
This may occur, for example, by the protected person making a phone call to, or attending the workplace or residence of, the defendant when there is a prohibition against contact or approaching, or engaging in conduct which would, if undertaken by the defendant, amount to a breach – such as intimidation, harassment or making threats.
A frequently asked question in this situation is: can a protected person be charged with breaching the AVO?
The short answer is: no, a protected person cannot be charged with breaching an AVO that is for their protection, as the order is against the defendant and not them.
In addition to this, section 14(7) of the Act makes clear that:
'A person is not guilty of an offence of aiding, abetting, counselling or procuring... [an AVO contravention] if the person is a protected person under the order concerned.'
NSW Police Force Code of Practice
For what it's worth, this answer is also in line with the Code of Practice for the NSW Police Force Response to Domestic and Family Violence, which, in the context of apprehended domestic violence orders (or 'ADVOs') provides that:
"A victim cannot lawfully consent to an ADVO being breached by the defendant. It is always the responsibility of the defendant to comply with the order..."
"A protected person named on an ADVO cannot be charged with aiding and abetting the breach of an ADVO."
Situations where a protected person may face criminal charges
However, there are situations where a protected person can face criminal charges over their conduct against a defendant they are meant to be protected from.
Put simply, these situations are where the protected person engages in conduct that amounts to a crime – such as the offence of stalking or intimidation, an assault or threating serious harm.
Staying out of trouble
If you are an AVO defendant faced with a situation where the protected person seems intent on getting you into trouble by procuring a breach of AVO, perhaps the best advice is to:
- Document the protected person's conduct, whether by audio or video recording (bearing in mind that protecting ones legal interests is a defence to private recordings), keeping records (whether by keeping records of messages, phone calls, social media communications, emails etc) and/or written records,
- Get yourself out of the situation as soon as possible, whether by not accepting or continuing a phone call or not replying to communications, or physically moving away from the protected person, and if necessary
- Contact police to report the conduct, especially if it could amount to a criminal offence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
