What Will Happen at an AVO Hearing?
An application for an Apprehended Violence Order must be heard in the Local Court in what is known as an AVO hearing. If the defendant consents to the order being made, the court will make the order without hearing any evidence. If the defendant does not consent to the order being made, a Magistrate will determine whether or not an order should be made after the court has heard all the evidence.
Prior to the hearing
When an application is made, the applicant must clearly indicate the period of the order they are seeking and the conditions they are seeking.
When a matter is set down for hearing, the applicant must serve the defendant with a copy of all the evidence it intends to call. The defence can then prepare its case and decide which witnesses, if any, it needs to call.
If the protected person is fearful of being in the same courtroom as the defendant, they may apply to give their evidence remotely by audio-visual link or from behind a screen in the courtroom so that the parties do not have to see each other. This application should be made well in advance of the hearing.
What happens on the day of the hearing?
Your matter will be listed in court at 9:30am on the date of the hearing. A number of other matters may also be listed. The first thing that will happen is that the Magistrate will call through each of the matters in the list to determine whether each matter is ready to proceed. The hearing is unlikely to start right away, as the Magistrate will deal with shorter matters, including any sentences or adjournment applications, first. The Magistrate may also have another hearing that is part heard (has been started on another day but not finished), or a hearing of a person in custody that has priority.
Once the hearing commences, the Magistrate will allow both parties a chance to give an opening address. The opening address is not compulsory, and in some matters, neither party will give an opening address.
How does the hearing proceed?
During the AVO hearing the applicant presents their case to the Magistrate first. This is usually done by calling witnesses in the matter, which may include the protected person, police officers and others. Prior to the hearing, the applicant and defendant will be ordered to exchange the evidence they each seek to rely on. This means either side should have a copy of the statement of any witness who is to be called.
The legal representative for the applicant (whether it’s a police prosecutor or a private lawyer) or the applicant themselves will call ‘evidence in chief’ of their first witness. This is where the witness is asked questions about things they saw, heard or otherwise perceived that is relevant to the application.
Once the applicant has asked all their questions, the witness is then cross-examined by the lawyer for the defendant (or by the defendant if they are not represented). Once cross examination is finished, the applicant will be permitted to ask questions in re-examination, provided the subject of the question is a matter arising from cross-examination.
Any photographs, documents or other evidence that is relied on can be tendered through a relevant witness while that witness is giving evidence.
This process will be repeated for each witness until the applicant has called all the evidence in their case.
After the applicant closes their case, the defendant will then be permitted to call evidence. The process outlined above will occur for any witness called by the defence.
What happens after Each Party Presents Their Case?
Both the applicant and the defendant will then be able to make submissions to the court during the AVO hearing about why the application ought to be granted or refused. At this time, submissions will usually be made about the evidence in the proceedings, the applicable legislative test, any relevant case law and why, ultimately, it is that the Magistrate should grant or refuse the application.
After hearing the submissions, the Magistrate will deliver a judgement, outlining their reasons for either granting or dismissing the application for an apprehended violence order.
If the court has insufficient time to do all of the above, the hearing may be adjourned part heard. This means that the hearing is incomplete and will be completed at another date.
Proceedings for Apprehended Violence Orders can be complicated and may require comprehensive submissions about the legislative test and relevant case law as well as the cross-examination of witnesses. It is important to obtain legal advice at an early stage as the statements and evidence that is required to be served in the lead up to the hearing may affect the way in which the hearing can be conducted and/or the evidence that may be tendered before the court.
If you require legal advice about AVO hearings or any other legal matter, contact Armstrong Legal for a confidential discussion.