What the Law states - Breach Of Domestic Violence
Section 80(1) of the Domestic and Family Violence Protection Act Queensland states:
(1) A respondent must not contravene a protection order, temporary protection order or any other order made under this Act, including a condition imposed by the order, if-
(a) the respondent was present in court when the order was made; or
(b) the respondent was served with a copy of the order; or
(c) a police officer told the respondent about the existence of the order.
What the Police must prove - Breach Of Domestic Violence
In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt:
1. The accused was the respondent in respect of a Domestic Violence Order that was in place at the time of the offence;
2. The aggrieved was a person named on that Domestic Violence Order as a person to benefit from that order; and
3. The accused breached that order by:
(a) failing to be of good behaviour towards the aggrieved;
(b) committing an act of domestic violence; and/or
(c) failing to comply with one of the conditions made by the court.
It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.
Maximum Penalty - Breach Of Domestic Violence
The Maximum penalty for the offence of breaching a domestic violence order is 2 years imprisonment if the offender has in the three (3) years before the current offence, been convicted of breaching a domestic violence order at least twice.
Otherwise, the maximum penalty is 40 penalty units or 1 year imprisonment. A penalty unit = $100.00.
Which court will hear the matter - Breach Of Domestic Violence
This matter is a simple offence and therefore will be heard in the Magistrates Court.
Possible Defences - Breach Of Domestic Violence
Possible defences to this offence include but are not limited to
1. Where the accused was not the subject of the Domestic Violence Order Notice
2. Where the accused was not aware of the Domestic Violence Order Notice
3. Where the accused was not served with a copy of the Domestic Violence Order Notice
4. Where a police officer did not inform the accused of the particular condition as well as the Domestic Violence Order in general.
5. Duress - example: there was a threat to the accused or another person that the accused reasonably believed would have been carried out if he/she had not have done the act that was in breach of the order.
6. Necessity - example: there was an extraordinary emergency
7. Intoxication
8. Insanity
9. Identification i.e. not the accused
10. Mistake of fact - example: the accused had an honest and reasonable, but mistaken belief that there was he was not the subject of the Domestic Violence Order.
It is not a defence for proceedings in respect of an interstate order to show that the accused was unaware the interstate order could be registered in Queensland or was in fact registered in Queensland.
Criminal Law Article written by Bill Potts (Queensland criminal defence lawyer who is experienced in Domestic Violence matters)
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