Consider the scenario where your charged with common assault, with a provisional apprehended domestic violence order (AVO) against you. These charges are taken out against you by the police who act on behalf of your partner (the alleged victim). The AVO prohibits you from approaching or contacting your partner and children.

As a result, your unable to go back to your home where your partner and children live.

The allegations are that you and your partner got into a heated argument last night. As a result, your partner’s told police that you slapped her over the face a few times before dragging her by the hair out of the bedroom. She has given a signed statement to the police explaining how this all allegedly happened.

What Happens If the Alleged Victim Doesn’t Attend Court?

A common question I get asked is, “what happens if my partner doesn’t come to court?”.

As one of the common outcomes- the charges end up getting dropped by police or dismissed in court.

There are generally 1 of 3 potential outcomes that can occur:

Possible Outcome 1- Charges Get Dismissed

Where the only evidence the police have against you is the alleged victim’s statement, the police won’t be able to prove the offence against you without her attendance in court.

The reason for this is, her signed statement that was previously made at the police station is generally not allowed to be used in court against you. This is because that statement is considered “hearsay” and inadmissible as evidence pursuant to section 59 Evidence Act 1995 (NSW).

For this reason, the police will either acknowledge that on the morning of your hearing, and then immediately drop the charges. Alternatively, the police will try to proceed with the hearing without any evidence to offer the court. In that case, the Magistrate will dismiss the charges and find you not guilty.

Depending on the circumstances, sometimes, you may be able to get costs from the prosecution pursuant to section 214 Criminal Procedure Act 1986 (NSW).

For details of how to get costs, see our previous article on How to Get Costs From Police.

Possible Outcome 2- Police Try to Use Her Statement in Court

Again, where the alleged victim doesn’t attend court, the police will sometimes try to hand up her previously signed statement as evidence against you to prove the charges in court.

If this takes place, it’s important to make an immediate objection in front of the Magistrate. The prosecutions attempt to use this statement rarely succeeds. Even if it does succeed, the prosecution are rarely successful in convincing the Magistrate to find you guilty. However, if there is other evidence involved, then this may end up being enough to prove the charges against you in court.

Normally, police are not allowed to use the alleged victim’s statement in her absence at court. This is due to the hearsay rule mentioned earlier.

The hearsay rule prohibits a statement that was previously made out of court, to then be used as evidence in court- especially in the absence of her at court.

The only way police can now use that statement in her absence at court is if an exception to the hearsay rule applies. This exception is found in section 65 Evidence Act 1995 (NSW).

To be successful in now using the alleged victim’s previously signed statement in court against you, the police must first meet each of the following essential requirements (in order for the exception to apply):

Requirement 1– The alleged victim is either dead; not competent to give evidence; it would be unlawful for her to give evidence; the police have taken “all reasonable steps” to find or secure her attendance in court, but were unsuccessful; or the police have taken “all reasonable steps” to compel her to give evidence, but were unsuccessful.

The police will fail to satisfy this requirement if, for example, they have failed to issue her with a subpoena or failed to make any attempts in contacting or locating the alleged victim.

Requirement 2– The previously signed statement by the alleged victim was made in trustworthy circumstances. Here the police will fail to satisfy this requirement if, for example, the statement made earlier at the police station was:

  • Made days after the day of the alleged assault; or
  • Made when the alleged victim was drunk, effected by drugs or had limited English speaking skills who gave the statement in the absence of an interpreter.

Requirement 3– the prosecutor is required to provide the defence with “reasonable notice” before attempting to take the path of using the previously signed statement in court against you. This requirement is found in section 67 Evidence Act 1995 (NSW).

Even if the above 3 requirements are satisfied, and the exception ends up applying, the police will fail to use the statement in court where the strength of the previously signed statement in proving your guilt is outweighed by the unfairness to you.

On the one hand, an unsigned statement is not made under oath in a court environment- it lacks strength. On the other hand, the unfairness is found in your inability to be able to question the alleged victim in court. Not being able to test the truth of what she alleges in her statement by having an opportunity to ask her questions creates unfairness to you. This is a significant prejudice which can result in the statement being kicked out under section 137 Evidence Act 1995 (NSW).

Even if the police pass through those above hurdles, getting the previously signed statement admitted into evidence against you- the court should then be asked to consider section 165 Evidence Act 1995 (NSW). This means the court should be asked to be extra cautious in the amount of reliance placed on the previously signed statement in these circumstances. Usually the Magistrate will then give very little or no weight to the statement.

This often results in the police being unable to prove it’s case against you beyond reasonable doubt- resulting in the charges being dismissed.

Possible Outcome 3- Police Ask for Adjournment or Arrest Warrant

The police may ask the Magistrate for an adjournment if the alleged victim, who has previously provided a signed statement, fails to attend court on the hearing date.

Police normally ask for an adjournment where the alleged victim is the only evidence they have in proving the assault against you- as they are normally not allowed to use her previously signed statement in court (as explained above).

The Magistrate will then decide whether to adjourn the hearing to another date, or refuse the adjournment. If the adjournment is refused, the police will be forced to either withdraw the charge, or proceed with no evidence- in which case the charges will be dismissed in court.

The Magistrate will more likely refuse the adjournment in one or more of the following circumstances:

  • Where the defence oppose the police application to adjourn
  • Where the reason the prosecution cannot proceed to hearing is because the allege victim has failed to attend after notifying police she will not attend. If the case is adjourned, then how can the court be assured she will attend the next time?
  • The charges involves an objectively less serious allegation
  • Where you as the accused are in custody, or where your released on bail, but have been waiting for the case to finalise after a long period of time.
  • The cost you have incurred in securing a lawyer to prepare and attend for your hearing. Especially in circumstances you were not notified of the police possibly making an adjournment application.

If the adjournment application is granted, the police may then ask the Magistrate to grant an arrest warrant to be issued to secure the alleged victim’s attendance on the next hearing date.

An arrest warrant, if granted, simply allows police to arrest the alleged victim, if found, for purposes of bringing her to attend court for the hearing date.

An arrest warrant cannot be granted if:

  • Police have failed to serve a subpoena to the alleged victim in the proper way. i.e. delivering copy to her in person or in a way required under rule 6.4 Local Court Rules 2009; or
  • If the subpoena was served to her, the subpoena is faulty in another way, for example:
    • It was served to the alleged victim within 5 days before the hearing date, or
    • It wasn’t served
  • If the subpoena isn’t signed and dated by the Registrar; or

For more information on subpoenas, see “What is a Subpoena?”.

If the alleged victim fails to attend on the adjourned hearing date again (even after an arrest warrant was issued), there becomes a stronger case for the defence to argue that the hearing proceed. If successful, this leaves the police with the decision to either withdraw the charges, or the option of taking the path of the possible outcome 2 noted above (and proceed to hearing).

Role of Lawyers

Whilst a lawyer must never suggest to a client to advise the alleged victim or witness not to attend court, a lawyer’s role is to provide advice and facilitate their clients decision making process. There is nothing wrong in providing advice as to the possible results that may happen if the alleged victim fails to attend court on the hearing date.

AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

View all posts by Jimmy Singh