Abusive behaviour towards intimate partners
[5-2000] Introduction
The Crimes Legislation Amendment (Coercive Control) Act 2022 (“the Act”) relevantly amends the Crimes Act 1900 to create a new offence of abusive behaviour towards intimate partners.
The offence involves engaging in a course of conduct consisting of abusive behaviour (violence, threats, intimidation, or coercion or control of a person) against a current or former intimate partner, with the intention of coercing or controlling that person: s 54D(1).
The new offence provisions are expected to commence between 1 February and 1 July 2024 and will only apply to conduct occurring on or after the commencement of the amendments: Crimes Legislation Amendment (Coercive Control) Act 2022, s 2; Sch 1[2], 2[6].
[5-2010] Suggested direction
The accused is charged with engaging in a course of conduct against the complainant that consisted of abusive behaviour, intending to coerce or control the complainant who was [or: had been] an intimate partner.
To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following elements which make up the offence.
- 1.
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The accused was an adult: ss 54D(1), s 54C.
- 2.
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The accused and the complainant were [or: had been] intimate partners: ss 54D(1)(b), 54C.
- 3.
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The accused engaged in a course of conduct against the complainant: ss 54D(1)(a), 54G.
- 4.
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The course of conduct consisted of abusive behaviour: ss 54D(1)(a), 54F.
- 5.
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The accused intended the course of conduct to coerce or control the complainant: s 54D(1)(c).
- 6.
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A reasonable person would consider the course of conduct would be likely, in all the circumstances, to cause any or all of the following, whether or not the fear or impact was in fact caused:
- (a)
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fear that violence would be used against the complainant or another person, or
- (b)
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a serious adverse impact on the capacity of the complainant to engage in some or all of the complainant’s ordinary day-to-day activities. [Omit any of these matters which are not alleged by the prosecution.]: 54D(1)(d).
- 7.
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[Only where there is evidence capable of raising the defence in s 54E: The course of conduct was not reasonable in all the circumstances.]: s 54E(2)(b).
You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of them you must find the accused not guilty.
- 1.
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The accused was an adult.
An “adult” is a person who is 18 years of age or older.
- 2.
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The accused and the complainant were [or: had been] intimate partners.
The complainant will have been an “intimate partner” of the accused if the complainant, at the time the alleged course of conduct occurred or previously: [specify which of the following is alleged]:
- (a)
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was married to the accused; or
- (b)
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was a de facto partner of the accused; or
- (c)
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had an intimate personal relationship with the accused, whether or not the intimate relationship involved a relationship of a sexual nature.
- 3.
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The accused engaged in a course of conduct against the complainant.
A “course of conduct” means engaging in behaviour either repeatedly or continuously, or both repeatedly and continuously.
Such behaviour does not have to be engaged in as an unbroken series of incidents or in immediate succession.
[Where appropriate: it must involve behaviour engaged in within this State, but it may also include behaviour engaged in outside the State.]
- 4.
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The course of conduct consisted of abusive behaviour.
“Abusive behaviour” means behaviour that consists of, or involves:
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violence or threats against the complainant, or
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intimidation of the complainant, or
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coercion or control of the complainant: s 54F(1).
There are a variety of behaviours that may constitute abusive behaviour.
In this case the Crown alleges there was abusive behaviour by way of the accused [describe the nature and description of the behaviours that are alleged to amount to the course of conduct of abusive behaviour and the particulars of the period of time over which it is alleged to have taken place]: s 54H(1)(b).
[If there is a dispute about particulars of any specific incident of abusive behaviour alleged: s 54H(2)(b): In relation to the [refer to the incident] there is an issue about a matter of detail concerning [specify the particular that is in issue]. As a matter of law this is not a matter that the Crown is required to prove beyond reasonable doubt.
[Summarise the competing cases in relation to elements 3 and 4.]
The law is that the course of conduct may be constituted by any combination of abusive behaviours. Whether the course of conduct consists of or involves abusive behaviour must be assessed by you considering all of the behaviours that the Crown alleges makes up the course of conduct and determining whether you are satisfied beyond reasonable doubt that they consisted of or involved violence or threats of violence against the complainant, intimidation of the complainant or coercion or control of the complainant].
-
- 5.
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The accused intended the course of conduct to coerce or control the complainant.
This element is concerned with the accused’s state of mind. The Crown must prove that the accused intended the course of conduct of abusive behaviour to coerce or control the complainant.
A person’s intention may be inferred or deduced from what the person may have said or done. Even without the person having said anything, their actions and the circumstances in which they were carried out may provide the most convincing evidence of what their intention was. [If appropriate: Where a specific result is the obvious and inevitable consequence of a person’s act, and the person does that act, a jury may readily conclude that the person acted with the intention of achieving that specific result.]
[A direction on the care required in relation to drawing inferences should be considered: see [3-150]]
To “coerce” someone is to restrain or constrain them by force or to compel them to do or to refrain from doing something. To “control” a person is to exercise restraint or direction over someone; to dominate or have command over them.
[Summarise the competing cases on this issue.]
The Crown must prove the accused intended the “course of conduct” to coerce or control the complainant. It is not necessary for the Crown to prove that each of the acts of the accused that you find establishes the course of conduct were by themselves intended to have that effect.
- 6.
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A reasonable person would consider the course of conduct would be likely, in all the circumstances, to cause any or all of the following, whether or not the fear or impact was in fact caused:
- (a)
-
fear that violence would be used against the complainant or another person, or
- (b)
-
a serious adverse impact on the capacity of the complainant to engage in some or all of the complainant’s ordinary day-to-day activities. [Omit any of these matters which are not alleged by the prosecution.]
In deciding what a “reasonable person” would consider you are asked to make an objective assessment based upon community standards of the likely effect of the accused’s course of conduct. You must consider this question in the light of all of the circumstances that you regard as relevant.
The Crown says that the following circumstances are relevant for you to take into account. [Summarise those relied upon by the Crown.]
The Crown is not required to prove what the complainant thought, or what was in fact, the effect of the accused’s course of conduct. Although there may be evidence from a complainant about this, there does not have to be because this element is concerned with what a reasonable person would consider the course of conduct would be likely to cause, not what may have been, or what was in fact, caused.
[Refer to any evidence that may have been given and explain its relevance.]
- 7.
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[Where there is evidence capable of raising the defence in s 54E: The course of conduct was not reasonable in all the circumstances.]
The defence case is that the course of conduct was reasonable in the circumstances. This is not a matter for the defence to prove. I remind you that the accused is not obliged to prove anything and that the onus remains at all times upon the Crown to prove the accused’s guilt beyond reasonable doubt.
In relation to this issue, it is for the Crown to prove that the course of conduct engaged in by the accused was not reasonable in all the circumstances.
[Summarise the evidence and submissions on this issue].
[5-2020] Notes
- 1.
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There is no minimum number of incidents required to establish a course of conduct: Second Reading Speech, Crimes Legislation Amendment (Coercive Control) Bill 2022, Legislative Assembly, Debates, 19/10/2022, p 9047.
- 2.
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If a specific incident of abusive behaviour is alleged to form part of the course of conduct, the prosecution is not required to allege the particulars that would be necessary were the incident charged as a separate offence: s 54H(1)(a). The prosecution is required to allege the nature and description of the behaviours that amount to the course of conduct and the particulars of the period of time over which the course of conduct took place: s 54H(1)(b).
- 3.
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The common law in relation to double jeopardy applies to s 54D offences: Note to s 54H. A person cannot be subsequently convicted of a standalone offence if it formed part of a course of conduct for a s 54D(1) charge regarding which the person was either acquitted or convicted. Likewise, there can be no conviction for a s 54D(1) charge if it relies on a standalone offence for which the person was already convicted or acquitted.
- 4.
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An offence against s 54D(1) is a “domestic abuse offence”: s 11 Crimes (Domestic and Personal Violence) Act 2007. Particular procedural provisions of the Criminal Procedure Act 1986 apply to proceedings for such offences: Evidence given by alternative means at [1-360]ff, and Closed court, suppression and non-publication orders at [1-349].
- 5.
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As the offence is a “domestic abuse offence”, s 306ZR of the Criminal Procedure Act applies. If evidence is given or a question is asked of a witness that tends to suggest an absence or delay in complaint, the warning and information in s 306ZR(2) must be given.
- 6.
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Where evidence of other acts of alleged misconduct by the accused towards the complainant are led, see Suggested direction — context evidence at [4-215].
- 7.
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Where evidence of complaint is led, see Complaint evidence at [5-000].
- 8.
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For information and discussion of the dynamics of coercive control, see the Equality before the Law Bench Book at 7.5.3, and as to domestic violence offences generally see Sentencing Bench Book at Domestic violence offences at [63-500]. See also Coercive control resource on the Judicial Information Research System (for JIRS subscribers and judicial officers only).