A police statement refers to an official record of an offence made in the victim’s or witness’ own words. Domestic violence cases can be particularly complex as they sometimes hinge upon statements made by witnesses and victims who are often close to the alleged violent person. There are also instances where false complaints may be levelled against a person in the heat of the moment, out of spite, or in an attempt to gain an advantage in family court (like attempting to gain full custody of children, for instance).
For these reasons, it is very common for victims of domestic assault to initially resist giving a statement, or later attempt to retract, withdraw or change their statement in order to keep a family together, prevent prosecution of the defendant, or to keep the case from going to trial.
But it is not necessarily that simple.
While it is possible to alter or withdraw a statement at the officer in charge’s discretion, it is a serious crime to give false statements to police. Signed statements require a written declaration that all of the contents are correct to the best of the witness’ knowledge, and if found to be untrue, it can result in serious charges which include perverting the course of justice. In addition, withdrawing a statement about the person being charged may not make a difference to the case. NSW Police will generally pursue a case once it has been alleged that an act of violence or domestic intimidation has been committed, and they can do so with or without the victim’s statement.
As such, it is advised to avoid making hasty decisions until you contact an experienced criminal lawyer for legal advice.
Am I Required To Give A Statement?
You are not obligated by law to provide a statement to police or help them with their investigation in any way. If you do not wish to assist police, you should seek advice or support from lawyers before making any kind of official statement.
However, be aware that if police do continue with the case they can issue a victim or witness with a court summons or subpoena, which is a legally-binding order from the court which requires you to give evidence at trial.
Making A Statement To Police
You should always seek legal advice before making an official statement, whether at the scene, on the phone or at a police station. As mentioned above, a statement is a legal document that may be used in the prosecution of an alleged assailant, and making a false or misleading statement may put you in breach of the law.
Before you decide to give a statement, it is important to understand that NSW Police can advance with a domestic violence charge whether the alleged victim cooperates or not. The reason for this policy is to protect victims of domestic abuse who protect abusive partners or refuse to take the matter to the courts out of fear of reprisal. Police will usually have enough evidence to lay charges upon the alleged offender. For example, a verbal complaint is theoretically all that they need to charge someone with a criminal offence.
Police will follow up on any complaint made by an alleged victim of domestic violence, however minor it may seem, so before you make a statement, it is best to contact an experienced criminal lawyer for legal support.
What If I Want To Change Or Withdraw My Statement?
If you have already given a statement and wish to rectify it, you should call a criminal lawyer for advice. It is not unusual for victims or witnesses to attempt to make changes to their statement, or withdraw them entirely, particularly if the defendant has multiple prior offences and is facing possible jail time. The police officer overseeing a case has the authority to strike a statement from the record, however, you should contact a criminal lawyer before approaching police. It is essential you have an experienced professional offering advice, and guiding you through a difficult and, at times, intimidating process.
Will The Police Drop The Charges If I Withdraw My Statement?
Withdrawal of a witness statement does not guarantee that the changes will be dropped. It is a common occurrence in these kinds of cases for the victim to either recant their statement or express a desire for the alleged offender not to be criminally prosecuted, however, the NSW Police have a policy in place that requires them to proceed with charges where there is sufficient evidence that a crime has taken place, and if they believe it is in the public interest to proceed. If so, prosecution will proceed regardless of whether the alleged victim withdraws their complaint or not.
Will Criminal Charges Always Be Laid When There Has Been An Incident Of Domestic Violence?
No, not always. It depends on the nature of the case, how strong the evidence of the case is and what statements have been given. Sometimes, despite evidence (reliable or not) that an incident of domestic violence has occurred, the police will exercise discretion and not lay criminal charges. In this circumstance, it is likely that the officer in charge will seek an Apprehended Domestic Violence Order on behalf of the victim (AVO).
An AVO is a court order protecting an alleged victim from an alleged perpetrator in domestic violence matters. Orders can be made by a court to ensure the safety of the victim and anyone living with the victim (for example children). Conditions of an AVO will depend on the level of alleged violence and can include restrictions on an offender from approaching or contacting the victim, or some as simple as not assaulting or threatening the victim.
What if I do not want an AVO?
You have the right to refuse an AVO, however, due to NSW pro-investigation policies, officers do not depend on the victim to determine whether an AVO or charge should be initiated. You are not even required to give evidence unless summoned. NSW Police will generally pursue an AVO if there is sufficient evidence and if they hold fears for the safety of the victim of violence. It then becomes a legal matter to be processed by the court.
What if I want to withdraw my AVO?
In Australia, you retain the right to decide whether you want to pursue an AVO, and the right to withdraw from the proceedings at any time. It is important to understand that it is quite uncommon for police to halt an AVO application at the request of the person who filed for it, particularly if there is a statement attached to the case.
Keep in mind that there are two categories of AVOs: police AVOs, filed by the police, and private AVOs, which are filed by a complainant. If you have filed for a private AVO and wish to withdraw, you may do so by contacting the police officer overseeing your case who will then advise you of your rights. Again, you are advised to consult criminal legal services for help before you do so.
However, if the police have filed for a provisional AVO on your behalf, it becomes a matter for the courts. Generally, a provisional AVO goes into effect immediately, with the judge deciding on the first court date whether to make it an interim AVO for the entirety of the case. An AVO can be revoked if evidence is presented to the court that it is unnecessary or inappropriate. This process may entail giving evidence, cross-examination of witnesses, and tendering documents to the court.
It is important that you speak to an experienced Criminal Defence Lawyer before withdrawing your AVO, as there may be service costs orders made against you in initiating proceedings and then discontinuing them.
Call LY Lawyers on 1300 595 299 for a free consultation.