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Restrained from “Coercive Control” Despite No Guilty Finding

Imagine this scenario for a minute.

You are charged with the offence of “coercive control” in Queensland. To defend that charge, you engage criminal lawyers who diligently pursue your defence. Despite the evidence in support of the charge being quite weak, you are forced to prepare for a trial in your defence.

On the day of the Court hearing, the Police announce to the Court that they are withdrawing the charge. “About time!” you think to yourself, wondering why they took so long to do it. But then, the Police advocate asks the Court to refer the matter for another hearing to make Court orders preventing you from speaking to your spouse about their spending habits.

You then spend even more money on lawyers to help prepare for another hearing, at which the Court exercises its discretion to make the orders sought. You may not speak to your spouse about how they spend their money for 5 years.

Sounds like something that could never reasonably happen, right?

Well it’s an entirely plausible series of events under the Coercive Control legislation coming into force soon in Queensland.

How Do the Restraint Provisions Work?

Here is how the restraint provisions work.

First, you must have been charged with the offence of Coercive Control, and there must be a hearing before a Court in connection with that offence.

However, it does not matter how that hearing ends – you could be guilty, not guilty, or something else entirely happens  – it makes no difference.

At that point, either the Police, the Court, or an “interested person” can apply to the Court for orders restraining your conduct.

There will then be another hearing on that topic. The Court can make restraining orders “if it considers it desirable to do so”. That is the only test.

Importantly, if there are questions of fact to be determined (eg – did you in fact do the thing complained of) at this hearing it is not determined using the “beyond reasonable doubt” test but rather the “balance of probabilities” test (read here for more on that topic).

The Court can then decide to restrain you “in relation to any person or any property”, for a set period of time. If you breach the order, you commit an offence and could go to prison.

What is the Point of the Restraint Provisions?

Presumably the underlying purpose of the restraint provisions is to perform a function that the penalties for a criminal offence cannot perform – to prevent the alleged problematic behaviour from continuing.

As with the rest of the Coercive Control laws, however, there are some significant problems.

Total Unguided Discretion

For now, at least, it is largely unpredictable what guidelines or considerations the Courts are going to apply when deciding whether or not to:

  1. refer the matter for a restraining order hearing; or
  2. make a restraining order.

In both cases, the test is simply if the Court “considers it desirable” which is essentially a complete discretion.

Second Bite at the Cherry?

The next major issue is that the lowered burden of proof on a restraint proceeding would seem to encourage a certain kind of mischief:

  1. Police are considering charging someone with Coercive Control, but know that there are limited prospects they can successfully establish the necessary facts “beyond reasonable doubt”;
  2. However, they also know that this is the path towards getting a restraint hearing underway, so they charge the person anyway with the ulterior purpose of then applying for a restraint hearing with its lower burden of proof.

In short, will these provisions encourage charges being brought when they shouldn’t?

A Breach is an Offence

In normal civil proceedings (eg – a company suing another company for money), breaching a Court order is bad but does not typically result in statutory sanctions or jail time, except for extreme circumstances of contempt. While there are some exceptions, a Judge generally decides what, if anything, to do in relation to such a breach.

Here though, if someone knowingly breaches a restraint order then they have committed an offence and could be punished with up to 3 years’ imprisonment or a large fine.

The Behaviour Restrained can be Anything

The misleading title of the section covering this topic says “Court may restrain coercive control”.

However, the actual text does not limit the Court to restraining behaviour that constitutes coercive control. In fact, there are no limits on what the Court can restrain at all in this legislation, provided it is “against the person in relation to any person or any property”.

So, the restrained behaviour does not need to be criminal or unlawful in order to be restrained. It does not need to meet even the broad test of “domestic violence” in the coercive control legislation, nor any other criteria.

So how will this work in practice? Will Police or “interested persons” be applying for orders restraining behaviour that is unpopular, anti-social or simply frowned upon? Will Courts be prepared to make those orders, bearing in mind the broad discretion given?

While we might hope that this kind of power would not be used in this way, the reality is that the legislation permits it, and so there is every likelihood that Police or individuals will try it at some point soon.

In Short – It’s Just More Mess

The upcoming Coercive Control legislation remains a pandora’s box of interpretation, and the restraining order powers are just another layer of potential abuse waiting to be tested.

If you are faced with a charge like this, make sure you have a strong team of lawyers behind you, because the downside could be considerable if things go south.