Criminal defence lawyers are often asked what will happen if the complainant – also known as the alleged victim – in a case involving accusations of domestic violence fails to attend the Local Court on the ‘hearing date’, which is the final court date when witnesses are meant to attend court to be asked questions on the witness stand, and when the magistrate decides whether the defendant is guilty or not guilty.
A word of warning
It should be made clear at the outset there can be serious consequences for a defendant who threatens or coerces a complainant into not attending court, including the possibility of facing further proceedings for offences against public justice which may include threatening or intimidating victims or witnesses or attempting to pervert the course of justice.
Reasons a complainant may not wish to attend court
That said, a complainant may genuinely not wish to attend for any one of a number of reasons, and the decision not to attend court has nothing to do with the defendant.
These reasons may include:
- the relationship having been rectified and each party wanting to move forward, o
- that while the pair have gone their separate ways the complainant not wishing the defendant to be further punished,
- the complainant simply not wishing to deal with the proceedings anymore or face the potentially re-traumatising effects of cross-examination in court,
- the statement/s having been given by the complainant to police in anger, frustration or while intoxicated and being exaggerated, misleading or false, or omitting important events or interactions, and/or
- the initial complaint being false in its entirety – intended to enact revenge or otherwise cause harm to the defendant, and the complainant fearing this will be exposed in court and thereby exposing him or her to potential criminal prosecution for making a false complaint – which is something far more common than many might think.
But let’s take a step back and go through what typically occurs in domestic-violence related cases that are prosecuted in the Local Court, with a view to understanding what happens if a complainant fails to show up, and why such situations are dealt with in the way they are.
Complainant’s statement to police
When an allegation of domestic violence is made, the police will usually obtain a statement from the complainant.
There are two main ways by which an allegation may be obtained by the police, which are:
- Domestic Violence Evidence in Chief (DVEC)
A Domestic Violence Evidence in Chief, commonly known as DVEC, is a video and/or audio recording made by the police to obtain a statement from the complainant. A DVEC is admissible in court as evidence in chief in criminal proceedings for domestic violence offenses.
- Written statement
Another way the police can obtain a statement is by way of a written statement whether that be typed up in front of a computer at a police station or entered into a police officer’s notebook.
Subpoena to attend court
When a hearing date is set down, the police are meant to serve a subpoena upon the complainant and other witnesses.
A subpoena is a court order requiring the witness’s attendance at a particular court on a specified date and at a specific time.
What can the magistrate do if the complainant fails to attend?
The court has four options in circumstances where a complainant fails to attend court on the date of the defended hearing, which are:
- To adjourn the proceedings to another date in order to allow the complainant to attend on the next occasion,
- To adjourn the proceedings to another date and issue a warrant for the complainant’s arrest for failing to comply with the subpoena,
- To dismiss the charges brought against the defendant, or
- To give the prosecution the opportunity to continue the proceedings in the absence of the complainant.
Here’s a summary of what will generally occur in respect of each of these options
1. Adjourning the proceedings
When the complainant fails to appear, the prosecution typically requests an adjournment, meaning they seek to reschedule the hearing for a later date.
The reason behind this request is that proving an offense beyond a reasonable doubt becomes highly challenging, if not impossible, without the main witness present in court.
This is because the complainant’s statement to the police is usually considered hearsay and not admissible in court.
The difficulty is further compounded in cases where there are no other material witnesses, such as in assault cases or applications for apprehended violence orders. If an adjournment is granted, the magistrate will inquire about whether the complainant has been served with a subpoena, and the prosecutor may make submissions regarding the likelihood of the complainant’s future court attendance.
Ultimately, if the adjournment is approved, the current hearing will be vacated and rescheduled for a future date.
2. Adjourning the proceedings and issuing an arrest warrant
The magistrate has another option available to them, which involves adjourning the proceedings and issuing a warrant for the complainant’s arrest.
However, this is only applicable if the complainant was properly served with a subpoena to attend court.
Before considering this course of action, the magistrate usually requires the prosecutor to provide evidence confirming that the complainant was indeed served with the subpoena in a valid manner.
This proof is generally in the form of an ‘affidavit of service,’ detailing the specifics of when, where, and how the subpoena was served on the complainant.
If the magistrate chooses to issue the warrant, it grants the authority to arrest the complainant, who will then be brought before the court to address their failure to appear.
3. Dismissing the proceedings
The magistrate has a third option, which involves dismissing the charges and/or any related applications, like an application for an apprehended violence order.
Typically, if the prosecutor’s request to adjourn the proceedings is denied, the prosecution will choose to ‘offer no evidence,’ resulting in the dismissal of the charges.
It is crucial for criminal defence lawyers to ensure that no evidence is offered rather than just withdrawing the proceedings, as opting for ‘no evidence’ activates the rule against double jeopardy.
This rule prevents any future prosecution based on the same allegations, safeguarding the defendant from facing the same charges again.
4. Proceeding without the complainant
While rare, but not uncommon, the prosecution may proceed with the hearing if a DVEC was obtained from the complainant.
The courts have determined that the legislators have allowed the admission of the DVEC as evidence even if the complainant is not present at the hearing.
Applications can be made by an experienced criminal defence lawyer to prevent the possibility of the prosecution continuing with this course.
Applications can be made to prevent the admission of the DVEC. For example, prosecution failing to make proper attempts in locating the complainant, the prejudice to the defendant as the complainant is not available to be cross-examined and give evidence under oath/affirmation.
Going to court for a domestic violence related offence?
If you are going to court for an offence arising from an allegation of domestic violence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free initial consultation with an experienced criminal defence lawyer and let us take care of the legal side of things, so you can move forward with your life.
Image inside Downing Centre Local Court taken with permission of Chief Magistrate’s Office under supervision of NSW Sheriffs.