ANALYTICAL FRAMEWORK
Understanding evidence in domestic violence proceedings. A structured, educational approach to the different forms of evidence that commonly arise and how they may assist courts in determining disputed issues.
Written by Joshua Jung
Principal Solicitor, Core Defence Lawyers
This page is general information about the law in New South Wales, not legal advice. It does not create a solicitor–client relationship. For advice on your circumstances, speak with a lawyer.
Domestic violence proceedings are often discussed in terms of allegations.
The legal process ultimately turns on evidence.
For that reason, understanding evidence is often more important than understanding the allegation itself.
An allegation may initiate proceedings.
Evidence determines outcomes.
The purpose of the Core Defence Evidence Evaluation Framework is to provide a structured approach to understanding the different forms of evidence that commonly arise in domestic violence matters and how they may assist courts in determining disputed issues.
The Framework is educational in nature.
It is not legal advice.
It does not determine outcomes.
Every matter depends upon its own facts, evidence and circumstances.
Its purpose is to promote disciplined and objective analysis.
THE STARTING POINT
Many people focus on a single piece of evidence.
Courts are generally required to do something different.
They must evaluate the totality of the evidence.
Accordingly, the central question is not:
“What does this piece of evidence show?”
The more important question is:
“What does all of the available evidence establish when considered together?”
The Framework begins from that principle.
FIVE CATEGORIES
Direct evidence concerns evidence that directly describes the event in dispute.
Examples may include:
Direct evidence often forms the foundation of a case.
However, direct evidence should still be assessed for reliability, consistency and context.
The existence of direct evidence does not automatically resolve disputed issues.
Its weight depends upon the circumstances.
Evidence rarely exists in isolation.
Accordingly, courts frequently consider evidence that assists in understanding the surrounding circumstances.
Examples may include:
Contextual evidence may assist courts in understanding how events developed and how other evidence should be interpreted.
Context should not replace evidence.
However, it often assists in understanding evidence.
Corroborative evidence refers to material that supports, confirms or contradicts another piece of evidence.
Examples may include:
Corroborative evidence may be particularly important where competing accounts exist.
The significance of corroboration depends upon what it demonstrates and how it relates to the disputed issues.
Courts are sometimes asked to consider conduct occurring before or after the alleged incident.
Examples may include:
Behavioural evidence may provide context.
Behaviour must be assessed cautiously and in context.
Conclusions should not be based on stereotypes or assumptions about how a complainant, accused person or witness would be expected to behave.
Human behaviour is complex, and people respond differently to conflict, stress and personal relationships.
For that reason, behavioural evidence should rarely be considered in isolation.
Objective evidence is often regarded as particularly significant because it is generally less dependent upon memory or interpretation.
Examples may include:
Objective evidence does not always answer every question.
However, it may assist courts in evaluating disputed accounts and establishing chronology.
BODY-WORN VIDEO
Police body-worn video footage frequently plays an important role in domestic violence proceedings.
It may record:
Importantly, body-worn video does not inherently favour either side.
Its significance depends upon what it demonstrates.
Body-worn video may support allegations.
It may raise questions.
It may provide context.
Its value lies in its ability to preserve observations that would otherwise rely upon memory alone.
ELECTRONIC COMMUNICATIONS
Modern domestic violence proceedings increasingly involve electronic communications.
These may include:
Electronic evidence can assist in understanding:
The significance of electronic evidence depends upon the surrounding circumstances and the issues in dispute.
MEDICAL EVIDENCE
Medical evidence may arise in a variety of forms including:
Medical evidence may assist in establishing:
The significance of medical evidence depends upon the circumstances and the issues requiring determination.
IMPORTANT
Its purpose is simply to provide a structured way of understanding evidence and the role evidence plays in domestic violence proceedings.
The Core Defence Principle
Domestic violence proceedings are often discussed in terms of allegations.
The Core Defence Evidence Evaluation Framework begins from a different premise.
Allegations commence proceedings.
Evidence determines outcomes.
For that reason, evidence should be examined carefully, systematically and objectively.
Because the most important question is rarely:
“What is alleged?”
The more important question is:
“What does the totality of the evidence establish?”
Links to legislation and court resources are provided for reference. Legislation is amended from time to time; always check the current version on the official source.
Our Standard
SPEAK WITH A DEFENCE LAWYER
Every matter is different. If you are facing a domestic violence allegation, an ADVO, or a defended hearing, the earliest possible advice protects your position. Contact the firm for a confidential initial discussion. Contacting Core Defence Lawyers does not create a solicitor–client relationship, which arises only after the firm confirms engagement in writing.
