In AVO (Part 1) it was discussed what an Apprehended Violence Order is, what they do, and who can apply for such an order. We outlined the process when an AVO is made by consent.
When an AVO is applied for, it is often the case that the person against whom an Order is sought does not want the Order made. There are numerous reasons as to why an AVO would be opposed, or defended. The obvious reason is that once in place, seemingly minor acts can constitute a breach which potentially carries a penalty of a custodial sentence. Guns and gun licences are to be surrendered, and it can effect some employment prospects, such as being a security guard.
A defended AVO hearing occurs in much the same way as a defended criminal hearing. The applicant runs their case by calling witnesses to give evidence and be available to be cross-examined by the defendant’s lawyer and the defendant puts their version of events by calling their witnesses.
Typically, the issue is whether an incident or incidents occurred, and therefore the hearing takes the same shape as a criminal trial. Where it differs from criminal proceedings, is the test the Magistrate applies when deciding if the order should be made. Simply put, the magistrate decides if the applicant fears the defendant, and if that fear is reasonable.
You would be familiar with the term “beyond reasonable doubt”, meaning that if a juror or Magistrate has a doubt regarding guilt, and that doubt is reasonable, they must acquit. It is quite a high standard of proof.
AVO proceedings apply a less onerous standard, being “on the balance of probabilities”. This is where it is ok to think “yeah, he probably did it” and that is enough to make an Order.
Remember OJ Simpson being found not guilty of murder, and then being successfully sued for wrongful death by the same justice system? That illustrates the difference between the standards. The criminal Court was basically saying “he may well have done it, but I do have a doubt”. Whereas the civil Court was saying “we think it is more likely that the victim’s family and witnesses are telling the truth”.
If you find yourself defending an AVO, or needing the protection that an AVO is designed for, you should consult a lawyer before the matter goes to Court.
If you have any questions you would like answered either confidentially or via this medium, please email us at firstname.lastname@example.org
This is intended for general information and does not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought.