Payback for false allegations

Jo-Anne Deuter, the South Australian District Court judge who first heard the case backed the wife's position, claiming the cops were responsible, not the wife – shielding her from the malicious prosecution claim.

But the SA Supreme Court disagreed, saying that this conclusion "was, with respect, an inaccurate summary and did not engage with the essential details." Ouch!

These superior court judges also didn't buy Deuter's concern that victims of domestic violence could be deterred from taking out intervention orders if they could be subject to malicious prosecution claims, saying that was "contestable." (Hogwash, in other words.)

Deuter even stated that, when a victim provides an untrue statement to police, it shouldn't be assumed the intervention order is being "used for an improper purpose" because the truth of the allegations "is a secondary consideration". Think about that. Here's a judge saying the truth of accusations is merely a secondary consideration!

Luckily, our superior court didn't agree. So, right now, South Australians have the green light from the High Court to proceed with malicious prosecution cases… and we are aware of a number ready to go.

Although the High Court in the MT case indicated that it was 'premature' to conclusively decide that malicious prosecution was available in domestic violence cases, by rejecting the appeal they certainly suggested that it is an available option in appropriate cases. It was certainly open to the High Court to definitively rule such actions out, and it did not do so.

In NSW, the key case is Rock v Henderson where the Court of Appeal found malicious prosecution can't be used to sue a party who sought a domestic violence intervention order because these are not criminal proceedings. Unfortunately, until the High Court definitively rules in favour of such prosecutions, the law in NSW remains governed by the Rock decision. It would be very interesting to see Rock appeal the Court of Appeal decision to the High Court.

There are other complexities to this question of whether intervention order proceedings are criminal. The DV legislation in all jurisdictions does in fact describe these proceedings as civil, which would generally mean they can't be criminal - but calling a dog a pig does not make it so.

Some of my legal advisers also argue that, whenever the state (the police) take action against a citizen which punishes that citizen, then that action is criminal in nature. And, when police take action with regard to an intervention order, the result of that action is arguably a punishment (forced to leave the home, prevented from seeing children, etc.)

The 'ankle-bracelet' case (YBFZ v Minister for Immigration) recently decided by the High Court, involved detainees being electronically monitored by the Commonwealth, without a Court making that decision. The High Court verdict determined that only a Court can punish a citizen. Not the state. And not the police.

The same rationale should apply to interim or temporary domestic violence orders, made by police without the oversight of a court; bringing into question the constitutional validity of these orders. (Note: This part of it only applies to interim orders – the temporary ones police grant before seeking a final order in court. In Queensland proposed new amendments will allow these to go for 12 months!)

Heady stuff, I know. These legal complexities do my head in. But these issues are of critical importance – surely it matters if domestic violence laws as they currently stand could be unconstitutional. We're seeking reaction from lawyers who follow my blogs – please get in touch if you have anything to contribute.