Notes to Guideline 1.1 – ‘not guilty’ plea in the Magistrates’ Court

Misidentification as the predominant aggressor of family violence by police

Family violence has the same meaning as in section 5 of the Family Violence Protection Act 2008 (Vic).

Misidentification occurs when police responding to a family violence incident make an incorrect decision about who needs protection and nominate a victim-survivor as the predominant aggressor (also known as primary aggressor).

There is recognition that the predominant aggressor may not be immediately obvious, and an incorrect decision may be influenced by:

• a victim-survivor’s use of self-defence being misinterpreted
• discriminatory views about the victim-survivor (for reasons such as race, disability, gender, sexuality, mental health, etc)
• police not obtaining necessary interpreters
• the perpetrator’s successful efforts to manipulate the police into believing that they are the person who needs protection.

Evidence of the following may indicate a heightened risk of misidentification:

• the client has sustained and/or inflicted injuries while defending themselves
• the other party has a history of using family violence against the client, and/or their previous partners or family members
• current or previous intervention orders have been made for the client's protection
• the client is highly fearful for their safety as result of the other party's threatening, coercive and controlling behaviour
• the client is economically dependent on the other party and is on a temporary visa
• there has been a lapse by Victoria Police in their duties by a failure to:
• interview the client separately, or at all
• use a professional interpreter, or use a family member as an interpreter
• follow protocols set out in the Code of Practice for the investigation of family violence, where the other party is a police officer.

Example

Clare is in a long-term relationship with John. There are cross safe contact intervention orders in place between them. One day when John and Claire have been drinking he becomes angry and threatens to kill Claire. She tries to run out the door but John blocks her. Claire smashes a beer bottle and shoves John aside. In doing so she cuts John’s arm. Police charge Claire with assault.

Brief of evidence:

• Victim statement given by John alleging the push and minor arm cut
• Photos of injuries on John’s knee
• Presence of smashed beer bottle at the location where the incident occurred

In this example Clare has been charged as a result of misidentification. If Clare is prepared to give evidence at a contested hearing, there is an arguable case to contest the charge.

Unjustified, disproportionate or unreasonable use of power by a person in a special position of authority

An unjustified, disproportionate or unreasonable use of power may relate to:

• criminal investigative procedure (such as improper swearing of affidavits, failing to caution prior to interview, unlawful searches or other improper means of gathering evidence) or
• racial profiling.

Racial profiling occurs where a law enforcement decision or exercise of power appear to have been made because of a person’s race, colour, descent or national or ethnic origin and without any reasonable basis.

Some examples of unjustified, disproportionate or unreasonable use of power are when a person in a special position of authority (such as a police officer) has unlawfully:

• stopped, questioned or searched a person, motor vehicle or property
• arrested, detained, imprisoned, threatened, hit, touched or physically handled a person.

Evidence of an unjustified, disproportionate or unreasonable use of power may include:

• evidence the client is willing to give at a contested hearing
• CCTV, a record of interview, body-worn camera footage, witness statements, diary entries or police notes, footage from witnesses' mobile phones, still images, 000 recordings, police use of force forms, police search forms, police search by consent forms, medical records.