Role of police

Contributed by Camille Inifer and Shayla Strapps and current to 1 September 2005

ON INITIAL NOTIFICATION

Where there is a reasonable belief that a criminal offence has occurred or is likely to occur, it is the responsibility of the police (the investigating agency) to conduct enquiries into the incident.

Police are able to take action to prevent breaches of the peace and apprehend offenders, and this extends to offences committed in the family home. Generally it is the police who will decide whether or not to charge the perpetrator of family and domestic violence with a criminal offence.

The police are able to take action to ensure immediate protection from suspected family and domestic violence. Under the Restraining Orders Act, they have a duty to investigate where they hold a reasonable suspicion that an act of family and domestic violence is being committed or that the personal safety of the victim is at risk. If police attend the scene and do not take action, they are obligated to submit a report as to the reason why.

Usually police first become aware of family and domestic violence when they receive a phone call indicating that the situation in the home is at a point where immediate intervention is required.

The person contacting the police, whether the victim, family member, friend or neighbour, should give their name and address and emphasise the urgency of the situation. The name of the officer who takes the complaint should be taken. This may be difficult if the complainant is the victim.

If the police refuse to attend or delay coming, keep ringing. If difficulties continue, Crisis Care or one of the women’s refuges may be able to help.

Police officers specialising in family violence are stationed in each district. They form a network coordinated through the WA Police Child Protection and Family Violence Unit based at Suite 1, 250 Adelaide Terrace, Perth WA 6000.

POLICE ACTION

As mentioned above, physical assault or the threat of violence are both offences. The police can take action including laying criminal charges. Criminal charges differ from restraining orders, which are orders aimed at preventing future action.

Where an offence is alleged and police consider an assault has occurred or is likely to occur, they can take the following action:

• with the authority of a senior police officer, issue a warrant to enter and search the premises. The warrant can be obtained as soon as the police have assessed the situation and have reason to believe that a person’s safety is at risk;
• issue an on-the-spot Police Order (see further below) and remove the alleged offender from the home to another location;
• remove firearms from the house;
• assist the alleged victim to obtain a Telephone Violence Restraining Order (see further below);
• arrest and charge an alleged offender;
• impose bail conditions to prevent the alleged offender contacting the person affected until the next court hearing;
• at any hearing, request an order preventing any contact with any witness (including the person injured or threatened) until trial;
• assist the alleged victim to leave the premises unmolested; or
• take no action, but suggest the victim seek a Restraining Order or take other legal action.

Police Orders (Restraining Orders Act Part 2, Division 3A)

Police can, with the authority of a senior officer, issue the following orders:

• 24 Hour Police Order – allows for a cooling off period of 24 hours whereby the perpetrator must relocate away from the premises. The permission of the victim is not required for a 24 hour Order; or
• 72 Hour Police Order – allows time for the victim to take the necessary steps to ensure their own safety and protection, such as by making application for a Violence Restraining Order or relocating to a safe place. The permission of the victim is required for a 72 hour Order.

Alternatively, the police can arrange a Violence Restraining Order by phone to an authorised Magistrate: see ‘Restraining Orders’ below.

A breach of a Police Order is serious and is likely to result in arrest and charges being laid.

Arrest and criminal charge

Sections 43 and 49 of the Police Act 1892 (WA) empower police to arrest a person where they believe there is enough evidence to show an offence has been or is likely to be committed. The purpose of arrest is to take someone into custody so that they can be dealt with according to the law.

If police charge an accused in regard to a family and domestic violence situation (such as with assault or breach of a Restraining Order), they will require the charged person to appear at court the following day. The accused may be kept at the police station overnight or allowed bail pending the appearance.

Police will also take statements from complainants and/or other persons involved.

If the accused defends the charges, the trial may be delayed for several months. Bail conditions designed to protect the complainant and any witnesses may be imposed if the court believes there is a danger of further violence. The accused does not have control of the matter before the court, where it is entirely under the control of the police or a prosecutor.

The complainant will have to give evidence on behalf of the prosecution if the accused pleads not guilty. If the complainant decides he or she does not want to give evidence, the police should be informed.

It should be noted however, that reluctant witnesses can still be compelled to give evidence, although one spouse cannot be compelled to give evidence against the other.

Action where police refuse to act

If the police refuse to lay charges, the complainant or victim may take private legal action, but this is a difficult and sometimes complex process. Legal advice should be sought before taking on such an action.

Where the police unjustifiably refuse to act, a detailed written complaint should be made: see the section on complaints against police in ARREST, INTERROGATION AND BAIL.