Charges and Apprehended Violence Orders
If an application for an Apprehended Violence Order (AVO) has been made against you, you may also have been charged with a criminal offence, for example assault.
If you have been charged with a crime, you should get legal advice.
Police investigations
The police can enter and stay in your home to investigate an alleged domestic violence offence if they are invited by a member of the household, including a child. However, the police can’t enter or stay in your home if the legal occupier expressly refuses to allow the police to enter or stay.
If the police are invited into your home by the victim of a domestic violence offence, they don’t need the legal occupiers consent to investigate the offence. They can enter or stay in your home, even if the legal occupier expressly refuses them permission to do so.
Police can demand that a person tells them their name and address if they suspect on reasonable grounds that an Apprehended Violence Order has been made against them.
Arrest and charge
The police can arrest you if:
- they reasonably suspect that you have committed a crime, or
- there is a warrant for your arrest.
If the police decide to charge you, they will prepare a formal charge and read it out to you.
If you are charged with a criminal offence, such as assault, assault occasioning actual bodily harm, or sexual assault, the police will usually also apply for an Apprehended Violence Order (AVO) against you on behalf of the victim.
If the victim is someone who you have or have had a domestic relationship with, for example a partner or family member, the police will apply for an Apprehended Domestic Violence Order (ADVO).
If the victim is not someone who you have or have had a domestic relationship with, for example a neighbour, work colleague, customer or client, the police may apply for an Apprehended Personal Violence Order (APVO).
Domestic violence offences
If you are charged with a crime the police can indicate on the charge that it is a domestic violence offence, for example, common assault domestic violence related.
The police must apply for an AVO against you if they suspect that:
- a domestic violence offence has been, is being, or will be committed against the alleged victim
- you have recently, are currently, or will likely stalk or intimidate the alleged victim with the intention of causing them to fear physical or mental harm
- an offence against a child or young person has been, is being, or will be committed
- there are proceedings against you for any of the above offences.
The police must apply for a Provisional AVO if they believe that an order needs to be made immediately to:
- ensure the safety and protection of the alleged victim, or
- prevent substantial damage to their property.
The police don’t have to apply for an AVO if:
- there is already an AVO in place to protect the alleged victim
- the victim is going to make your own application for an AVO
- there is a good reason not to make an application.
Serious offences
A court must make an Interim AVO against you if you have been charged with a serious offence unless it is satisfied that this is not required, for example, because there is already an AVO in place. It can do this even if you don’t go to court.
A serious offence may include:
- attempted murder
- a domestic violence offence or an attempted domestic violence offence
- stalking or intimidation with the intention of causing the victim to fear physical or mental harm
- wounding or grievous bodily harm
- sexual assault or attempted sexual assault
- sexual touching.
Bail
If you have been charged with a criminal offence and served with an AVO, the police may:
- release you without bail
- release you with no bail conditions
- release you with bail conditions
- refuse you bail.
If you have been charged with a show cause offence, the police must refuse you bail unless you can show cause (show why your detention is not justified).
If you can show cause, the police can still refuse you bail if they decide that there is an unacceptable risk that you will:
- fail to surrender yourself into custody
- commit an offence
- endanger the safety or welfare of any person
- interfere with a witness or obstruct the course of justice.
If the police release you on bail, your bail conditions may be the same as the conditions in your AVO, but there may also be some other conditions, such as reporting to a police station on a regular basis.
If the police refuse you bail, you can ask a senior officer to review the decision. If a senior officer confirms the decision to refuse you bail, they must take you to court as soon as possible. You will be able to apply for bail once you get to court.
Domestic violence offences
If you are charged with a domestic violence offence this will be taken in account by the Court when deciding whether to grant you bail.
If you have been arrested, charged with a criminal offence, or you are unsure of your bail conditions, you should get
legal advice.
Going to court
When you have been charged with a criminal offence and served with an AVO, the charge and the application for an Apprehended Violence Order (AVO) will usually be heard together.
On the first date you have to go to court, you will usually have to tell the Court if you:
- are pleading guilty or not guilty to the criminal charges
- consent(agree) or don't consent (don't agree) to the AVO.
When you first appear in court, if you haven't had a chance to see a lawyer you should ask the Court to adjourn (postpone) the case so that you have time to get legal advice.
Pleading guilty
If you plead guilty to the criminal offence, the Court will sentence you, which means it will decide what penalty to give you. You may have to come back to court on another day for the sentencing hearing.
Every offence carries different penalties and there are a number of things that will be considered by the Court when you are sentenced.
If you plead guilty to or are found guilty of a domestic violence offence, the Court must direct that it be recorded as a domestic violence offence on your criminal record.
If you are guilty of a domestic violence offence, the Court must sentence you to full-time detention, or a supervised order, unless it is satisfied that there is a different sentencing option that is more appropriate in your circumstances.
If you have previously been found guilty of a domestic violence offence, this is an aggravating factor that may increase the sentence you receive.
For more information on penalties and preparing for sentencing, you should get
legal advice.
For more information, see Driving offences and crime.
Family Law
If you plead guilty to a crime and admit to certain facts, a copy of the transcript can be used as evidence in your Family Law matter.
Pleading not guilty
If you plead not guilty to the criminal offence, the police should give you the main parts of the brief of evidence on the day you are charged, and no later than the mention. A brief of evidence is a folder or collection of the documents that the police will rely on to prove the case against you. The main part of the brief (sometimes also called the 'mini brief') usually includes the victim's statement and any photos of injuries or damage to property.
The Court will then list the case for a hearing. This may be several months away, depending on how busy the Court is. The Court will also make orders that the police prosecutor serve you with the rest of the brief of evidence by a particular date. The rest of the brief usually includes police statements and the statements of any witnesses.
When you plead not guilty to a criminal charge, you have to decide whether you agree to an Interim Apprehended Violence Order (AVO) being made. If you don't agree, the Court may want to hear evidence from the parties and then decide whether or not an Interim AVO is necessary.
At the hearing, the prosecutor will have to prove beyond a reasonable doubt that you committed the offence. If you are successful at defending the case, the Court may dismiss the charges and the AVO or they may still make the AVO, depending on the circumstances.
If you are unsuccessful and the criminal charges are proved at the hearing, the Court is likely to make a Final AVO.
For more information, see Driving offences and crime.
If you have been charged with a criminal offence and served with an AVO you may be eligible for Legal Aid. Go to the
Legal Aid website or see the duty solicitor at court. If you are not eligible for Legal Aid you may need to get a private solicitor or represent yourself.