Commonly asked criminal law questions
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Criminal Law FAQs
AVO, ADVO or APVO
What is the difference between an AVO, ADVO and an APVO?
An Apprehended Violence Order (AVO) is a court order designed to protect a person from violence, threats, harassment, or intimidation.
ADVO specifically refers to an order issued in cases involving domestic violence, where the victim and the perpetrator have a domestic relationship.
APVO, on the other hand, applies to situations where the victim and the perpetrator do not have a domestic relationship.
Can you make an AVO without assault occurring?
Yes. It is quite possible to have an ADVO or an APVO made even if a defendant does not intend harm, because the focus is on the PINOP’s reasonable fear.
When can an ADVO order be made?
In relation to an ADVO, this is set out particularly in s 16 or 17 of the Crimes (Domestic and Personal Violence) Act 2007 (the Act) or sections 19 & 20 of the Act for APVO. Generally, if a person has reasonable grounds to fear, and in fact fears the commission of a domestic violence offence on the balance of probabilities, an order can be made.
There is no need to establish an actual fear in certain circumstances including if person in need of protection (PINOP) is a child or is incapacitated. This is not only fear of an assault but can extend to intimidation (see FAQ on intimidation) which is widely defined by the Act.
The court has to balance the safety and protection of the PINOP (and any child) against the restrictions.
It is quite possible to have an ADVO or an APVO made even if a defendant does not intend harm, because the focus is on the PINOP’s reasonable fear.
What does PINOP mean?
The individual requiring protection is commonly referred to as the “Person In Need Of Protection” or PINOP. Conversely, the individual against whom the order is issued, is referred to as the “defendant.”
Can a person named as a PINOP change the court orders?
No. It is a court order. The order cannot be changed unless the Court changes it. The PINOP’s view might be considered, but until the Court actually amends the AVO orders or bail, You must observe those orders strictly.
What is the meaning of intimidation in an AVO, ADVO or APVO?
“Intimidation”, as defined by the Crimes (Domestic and Personal Violence) Act 2007 (the Act), includes conduct that amounts to harassment or molestation of a person. It also encompasses any approach made to the person through various means, such as telephone, text messaging, or email, that causes the person to fear for their safety. Additionally, intimidation covers conduct that causes a reasonable apprehension of injury to a person or someone with whom they have a domestic relationship, as well as violence or damage to any person or property.
When determining whether someone’s conduct qualifies as intimidation, a court may consider any patterns of violence, particularly instances of violence connected to the person’s behaviour. Just because you don’t consider behaviour to be intimidating, it doesn’t mean that someone else will view it that way.
What happens if an AVO prevents me from going home?
If the conditions of your AVO prevent you from going to your house to collect personal property, you can apply to the court to attend that property under section 37 of the Crimes (Domestic and Personal Violence) Act, 2007.
Clearly, this provision is meant for people to get personal property such as clothing or medications, and not as some sort of de facto property settlement. You must strictly abide the conditions of any AVO..
Speak to us and we can help get an application under way.
General
Entering a plea of Guilty or Not Guilty
Pleading guilty means that you agree that you have broken the law. Unless you dispute the facts alleged by the police, then the court will adopt those facts in determining a penalty. Pleading ‘not guilty’ means that you do not agree with the charges, or that you do agree, but you have a defence.
Before you go to court, you should talk to an expert criminal & traffic defence lawyer who can step you through the processes involved and help you put forward the best possible case.
What is a Section 10 dismissal?
Many people want to get the benefit of Section 10 of the Crimes (Sentencing Procedure) Act 1999. This is where the Court finds that the offence is proven (such as if you plead guilty), but does not proceed to record a conviction, and releases a person, usually on conditions including Good Behaviour for a period and/or a fine. If the person complies with those conditions then there is no further action. If they don’t, they can be called up and sentenced for that original offence.
A Section 10 dismissal can be applied to offences such as drink driving, drug driving, so that there is no disqualification.
However, a word of warning. A Section 10 dismissal can be difficult to obtain. It is essentially reserved for those who have a really good record (say 25 years of good driving without getting infringement notices) or where the circumstances are exceptional.
What is the difference between a Drink or Drug Driving charge and a DUI?
A person can be charged with ‘driving under the influence’ (DUI) in circumstances where it is not possible for the police to get an accurate blood alcohol reading, or if they are suspected of driving under the influence of illegal or prescription drugs. Alcohol or drugs are detected through blood and urine tests which are ordered if a police officer has reasonable suspicion that a driver is under the influence of a drug.
Witness and police accounts of the incident are also used to establish the offence.
Can I be charged with Assault even if I didn’t hit someone?
Yes. While the majority of assault charges involve unwanted physical contact, a charge can be made where there is no actual physical contact. All it requires it that there a hostile act, intended to cause fear and actually causing that fear – for example if a person raises a fist to another person, spits or even holds a knife up towards another person.
What is a CAN?
In NSW, a Court Attendance Notice (CAN) is a document issued to individuals who have been charged with a criminal offence and are required to appear in court. It is issued by the police at the time of charging, whether for a traffic violation or a more serious criminal offence. The CAN provides details of the alleged offence, the court date, and any other relevant information. It serves as a formal notification that the individual must attend court to address the charges against them. Failure to comply with a CAN may result in further legal consequences.
What is Bail?
Bail is a written agreement between you and the police or the Court that you will stick to certain conditions, such as:
- Attending court hearings
- Reporting to a designated police station on specified days or times.
- Abiding by a curfew
- Avoiding certain people or places
It’s important to note that bail remains in effect from one court appearance to the next. You must appear at every court appearance unless you are specifically excused.
In cases where your court attendance is consistent and the court has confidence in your reliability, you may request to be excused from certain court dates if you have legal representation capable of securing the continuation of your bail.
What is a Brief of Evidence?
The brief of evidence is a collection of documents that hold the evidence the prosecution plans to present in relation to a prescribed summary offence. This includes written statements from potential witnesses and any relevant documents or exhibits. It may also include documents that establish the legality of the evidence, such as warrants. You often have to reply to a brief of evidence, so speak to us first about your obligations.
Can I represent myself in court?
Yes. You have the right to advocate for yourself in court without assistance from a lawyer.
A person may do this if they believe that directly addressing the magistrate will achieve better results or if they do not have the means to cover legal fees. Note that if financial concerns are the driving factor in representing yourself, you should consider trying to obtain legal aid instead.
If you do opt for self-representation, you can still seek legal advice to support you in your case.
Help, I don’t understand all the legal jargon!
NSW Communities & Justice have prepared a glossary of terms to help you understand some of the terms used in court and in offence charges.
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