Can I withdraw my statement in a domestic violence case?
At Dribbin & Brown, we often represent affected family members in domestic violence cases. A common question that arises for affected family members is whether a statement can be withdrawn after being provided to the police. In Victoria, the answer to this question is no.
Once a statement is made to the police, whether that information is relied upon or is used against an accused becomes a police matter determined in consultation with the relevant prosecuting entity, such as the Office of Public Prosecutions, the Director of Public Prosecutions or the local police prosecutorial office. There may also be other reasons that the police continue to pursue a case against an accused, such as if the accused has made admissions to the police in a recorded interview or if there is CCTV evidence demonstrating the commission of an offence.
While an affected family member or complainant cannot withdraw a statement, a complainant can make a ‘statement of no complaint’, and this can be done at any stage of a police investigation.
It is always important for anyone considering making a statement of no complaint to engage experienced domestic violence lawyers.
What is a statement of no complaint?
A ‘statement of no complaint’ is a written statement provided to police by a victim or complainant stating that they wish for charges against a person accused of an offence to be dropped or to provide clarification to an original statement taken by police.
This does not amount to a withdrawal of the statement but goes a long way to indicate to the relevant prosecutorial agency that the complainant in the matter is no longer supportive of the prosecution, but there are a couple of caveats to this proposition.
Statement of no complaint for domestic violence charges
There are several reasons why an affected family member may not wish to support, or continue to support, a police investigation or charges for domestic violence by providing a statement of no complaint. A very common scenario in our legal practice is that a third party (perhaps a neighbour/family member) calls the police over an argument between partners. In the heat of the moment, statements are taken from both parties, and neither party intended for police intervention or criminal charges to be laid. This situation can, and often does, get out of hand very quickly. Early legal advice is critical.
Once the police have taken a formal statement from a complainant, several police procedures are followed, including compiling a brief of evidence, charging the accused, and issuing a family violence safety notice/intervention order if required. The police procedure in Victoria is governed by the Code of Practice for the Investigation of Family Violence (Code of Practice), which was developed in 2004 (see here).
If an affected family member has made a statement to the police and wishes to support a discontinuance in proceedings, then the first step is to engage a lawyer to prepare a statement of no complaint. This is a legal document provided to the informant and prosecution. Following this, your defence lawyer will negotiate with the prosecution to conduct a case review and, if instructed, negotiate a withdrawal of the charges against the accused.
Considerations when making a statement of no complaint
Lawyers will often advise complainants to attend the police station to make a statement of no complaint, but, in our view, this is a mistake. The police involved in a particular matter are not independent and may have a vested interest in pressing charges. Accordingly, a complainant should always be referred to an independent lawyer to obtain specific advice about making a statement of no complaint in their circumstances. This means obtaining advice from a lawyer or firm who is not associated with the person charged. All lawyers must abide by strict ethical rules and will inform you if they have a conflicting interest.
Why should an affected family member or complainant see a separate lawyer?
- A criminal lawyer can never act for both the defendant and the respondent. This is a conflict of interest.
- A lawyer acting only for the affected family member or complainant will have their best interests and goals in mind when assisting them.
When signing a statement of no complaint at the police station, police will often add a clause that says something along the lines of, “I am happy with the way in which police have investigated this matter”. “I accept that my original statement is true and correct, but giving it further consideration, I don’t want to proceed with the matter”. In doing so, the person making the statement of no complaint confirms the original statement in a further sworn statement.
For example, if, for whatever reason, the complainant’s initial statement was inaccurate, and the complainant intends that the charges be dropped, this can be unhelpful. There are many reasons why an initial statement may not be accurate, and these matters should always be resolved with an independent lawyer acting in the interests of the affected family member or complainant.
However, many factors ultimately determine whether criminal charges are withdrawn. As discussed above, a statement of no complaint by the alleged victim does not always mean that criminal charges will be withdrawn against an accused person.
In considering whether to withdraw charges, a police supervisor will determine:
- The strength of the police case without the victim’s support;
- Conduct a risk assessment/ risk management plan; and
- Consider the likelihood of a successful prosecution (see 4.3.2 of the Code of Practice).
A case review is a review of the police brief of evidence by the officer in charge of the investigation. The attendees for a case review can include the victim, a family violence support worker or advocate, police officers or a police lawyer. After the review, a decision will be made as to whether charges will proceed, which will then be communicated to your defence lawyer.
Am I required to give a statement in relation to domestic violence?
No, you are not required to give a statement to the police. This is a commonly misunderstood area of the law. Before obtaining advice, many of our clients are under the impression that refusing to cooperate or provide a statement to the police could lead to the ‘worst-case’ scenario for them or the accused person. Sure, there are circumstances in which providing a statement is beneficial from a defence perspective, but usually, providing a statement to the police will only do one thing, and that is assist the police case.
While the police are not legally able to compel any person to make a formal police statement, there are rules under the Evidence Act 2008 that apply to criminal proceedings and, in particular, domestic violence cases. This means that even if a person refuses to provide a statement to police, they could be called, and required by law, to give evidence in court. There is, however, a special provision under section 18 of the act which allows for spouses/family members to object to giving evidence for the prosecution in certain circumstances.
- S 12 of the Evidence Act 2008 states that except as otherwise provided in the act (see ss 13 & 18) –
- everyone is competent to give evidence; and
- a person who is competent to give evidence about a fact is compellable to give that evidence.
- A person who is, at the time of giving evidence, the spouse, defacto partner, parent or child of an accused may object to being required to give evidence for the prosecution under the rule in s 18(2).
- ‘Partner and child’ are defined broadly in the act and include an adopted or ex-nuptial child, a child living with the person as if the child were a member of the parent’s family and adoptive parent.
For example, in DPP V Nicholls, a ten-year relationship with the accused, with two children, was held to be sufficient for the exemption to be granted under s 18.
In domestic violence cases, where a complainant is not supportive or has objected successfully to giving evidence under s 18, there is, of course, other evidence the prosecution will often try and rely upon (and seek to admit into evidence), such as an initial statement of a complainant, digitally recorded evidence from a police body-worn camera or evidence led by the informant who was first at the scene. Your legal team will need to carefully consider the admissibility of this evidence.
My partner is charged with a criminal offence. Can I provide a statement of no complaint?
Yes, a statement of no complaint can be provided to the informant and prosecution in criminal proceedings. A statement of no complaint only applies in the criminal jurisdiction and is not required for intervention order proceedings. However, it is not uncommon for our clients to have intervention order and criminal matters arising from the same incident, in which case the document can be used to negotiate not only a withdrawal of the criminal charges but also the intervention order proceedings.
Will the police drop the charges if I provide a statement of no complaint?
A statement from a victim is a fairly significant piece of evidence that forms part of a police brief. If a statement of no complaint is provided, it may mean that the charges are withdrawn against an accused person. However, this depends on what other evidence the police have in support of the case. For example, in a domestic violence case where a victim has made a statement of no complaint in circumstances where there are other credible prosecution witnesses, strong medical evidence and admissions by an accused in a record of interview, the prosecution would have a strong case without requiring evidence from a victim or affected family member.
What are some reasons for victims providing a statement of no complaint in domestic violence cases?
Reasons that a victim or affected family member seeks to provide a statement of no complaint in domestic violence cases vary depending on the individual and their circumstances; however, an affected person may be motivated by the following:
- Their initial statement was inaccurate or untrue;
- Their initial statement was completed in circumstances where it was unreliable (they were under the influence of drugs or alcohol, were very emotional, overtired or pressured by the police);
- They want to maintain a relationship with their partner/family member, who is the accused person;
- They don’t want to proceed with the matter; or
- They don’t want to give evidence in court.
Will criminal charges always be laid when there has been an incident of domestic violence?
Ten years ago, no, but more recently, yes. Domestic Violence incidents are incredibly common and a common topic in the media. Because of the increase in reported cases, understandably, there has been pressure on the police and our judicial officers to treat these matters very seriously. In Victoria, the figures speak for themselves. According to the Crime Statistics Agency (CSA), in 2021 – 2022, the family incident rate per 100,000 population was 90,553 compared to 88,204 in 2019 -2020.
If there has been an incident of domestic violence, it is almost certain that criminal charges will be laid. It is also very likely that the police will issue a family safety notice and intervention order proceedings that will run alongside criminal proceedings.
How do I negotiate an agreement with the police?
If you have been contacted by the police concerning a domestic violence incident, you should seek legal advice immediately. Do not speak to the police before speaking to a lawyer. Our lawyers can advise you, consider the evidence and negotiate with the police on your behalf.
Can the victim get charged following a statement of no complaint?
If a victim has provided a statement to police and later decides to provide a statement of no complaint, there are unlikely to be any legal consequences of concern. For police charges to be laid in a scenario such as this, the police would need sufficient evidence to satisfy that the statement initially made to the police was untrue and the victim had knowledge of this in the circumstances.
Usually, when our clients intend to provide a statement of no complaint, it is on the basis that they do not want the charges to proceed, not that they disagree with their initial statement or have any criticism of the police investigation.
Can I be charged if I withdraw my AVO statement?
It is unlikely that a victim would be charged for providing a statement of no complaint following an initial AVO statement made to the police unless the police have evidence that the statement was false and made in circumstances where the victim knew that they were misleading or deliberately lying to mislead the police or court.
Can the police continue to file for an IVO even if I provide a statement of no complaint?
Yes, the police can continue to file for an IVO without a victim’s statement or if a victim provides a statement of no complaint or is not supportive of an intervention order being made in the first place. The civil response by the police can include issuing a Family Violence Safety Notice (FVSN) or making an application for a Family Violence Intervention Order (FVIO) under the Family Violence Protection Act 2008. The issuing of a FVSN is immediate and can often include exclusion conditions prohibiting any contact and an exclusion from the family home (even if the victim is not supportive). Once an application is brought to court, usually within 14 days, a Magistrate will decide whether to issue an interim or full intervention order and what conditions are appropriate to protect the affected parties.
Do you want to provide a statement of no complaint? Please speak to us today.
If you have provided a statement to the police and wish to provide a statement of no complaint, we can assist you with this process. Please call our office today to arrange a time to speak with one of our criminal law specialists.
