Criminal Law

By Charlene Chalker-Harris


“But I didn’t press charges!” Why police will arrest your partner regardless.

You make a report to police about your partner’s conduct toward you.  You don’t want to press charges but police charge your partner anyway.  This is a common story, and it is particularly common in cases of domestic violence or, as it is now called, family violence.

There is a common misconception that it is your decision whether or not to press charges.   You may have been told this or you may have learnt it from watching US TV dramas, however that is simply not the case in Australia.  Here, the prosecuting authorities decide whether or not to lay charges and once charges have been laid, you have very little say in what happens next.


So what happens once you make a complaint?

Once you report that someone has assaulted you or damaged your property you become known as the ‘complainant’.  You effectively lose any decision-making power in the process and simply become a witness in the court proceedings that follow.

In my years working as a criminal defence lawyer, I have lost count of the number of phone calls I have received from people telling me they called police hoping their partner would just get a slap on the wrist and were shocked when they were arrested, repeating “Why is this happening?  I didn’t even press charges.”  They have often been tearful, desperate, and pleading for me to do something to stop it going to court.

Other than telling them they can articulate their views to police or the DPP, I have simply had to ask them to have their partner contact me so we can begin preparing for court.  The reality is that by the time their partner has been charged it is already too late – it is a runaway train.  What happens next is that the accused will be formally charged in court and asked whether they want to plead guilty or not guilty, and preparation begins to either dispute what happened or to go into damage control and minimize the sentence they receive.

Of course, the prosecuting authorities (that is, the police and the DPP) may take into account any views expressed by the complainant in deciding whether or not to prosecute a matter.  However, in the countless family violence matters I have worked on I have never had a prosecution discontinued simply because the complainant has said they do not want to ‘press charges’.


Why do police take this stance?

Police take this stance because it is very common for a genuine victim of family violence to want to retract their complaint due to threats or perceived threats made by their partner or other family members.  While the abuser is in custody, the abuser or their family members may blame the victim for getting them arrested and, given that abusive relationships are usually based on control and fear, that can be enough for a victim to want to retract their statement.  Not to mention the overt threats that abusers can make, for example, by threatening violence to the victim or their children.

However, it does not even need to be threats of violence that make a victim want to retract their statement – even threatening to leave the victim if they don’t get the charges dropped can be enough when that victim has been conditioned to believe that no one else will ever love them, that they cannot survive without their partner, or when that victim has been isolated from their friends and family.  Unfortunately, these are typical earmarks of an abusive relationship and these are the circumstances the system is setup to avoid.

In addition, abusive relationships are usually marked by a pattern of abuse whether it be emotional, financial, physical, psychological or sexual.  This cycle looks like: abuse, apologies, assurances that it will never happen again, and promises of being a better partner from now on.  It may or may not involve blaming the victim for the abuser’s conduct, saying things like “You made me like this!”  While it may seem easy to identify this manipulative behaviour from the outside, the reality is the victim has been conditioned over a period of time to believe what their partner tells them, to believe that they can change and to want to give them another chance.  It is for this reason that victims often defend their abusers, making excuses for them, justifying their behaviour or trying to downplay what happened.

That is part of the reason why, in the ACT, the initial complaint is now recorded in an Evidence in Chief Interview so the complaint is effectively captured in time at the time of the alleged incident.  The Evidence in Chief Interview is then played by the prosecution in court instead of the complainant having to attend court to give evidence personally, ensuring that the contemporaneous account is given and that the complainant does not have to relive the experience in court.

However, without diminishing what genuine victims of family violence go through, it is also not uncommon in the heat of the moment for there to be exaggeration of what actually happened or even to make false allegations for collateral purposes such as providing a reason for infidelity.  Some people make false allegations to gain a strategic advantage in family law proceedings, or to get permanent residency on family violence grounds.

While some of these complainants will follow their lies or exaggeration through to the end, others seek to correct the record.  In these situations, despite complainants insisting that they exaggerated or lied outright, more often than not police remain unconvinced, being trained to look for signs that a person is a victim of family violence.  Unfortunately, the signs that a person is a victim of family violence are the same as those exhibited by people making false or exaggerated complaints – both claim they lied or exaggerated, both claim responsibility for what happened, both say they didn’t want their partner to be charged, and both say they will be blamed for making the complaint.

It is near impossible to distinguish between a person who wants to retract or amend a false or inaccurate statement made in the heat of the moment or for reasons which they later regret, and a genuine victim of family violence who is feeling the pressure to retract their statement for fear of retribution by their partner or their partner’s family members.

What we are left with is couples who are unable to contact each other and clients unable return home due to strict bail conditions.  Of course, in cases of genuine family violence this protection that is afforded to the victim is absolutely warranted and is necessary, but what of the cases where a false or inaccurate allegation is made?

Unfortunately, then we are left with people whose careers and relationships are on the line.  The damage that is done can be irreparable if not managed properly, which is why it is critical to have a lawyer who knows what they are doing.  The team at Aulich Criminal Law are experienced and empathetic and will ensure your case is presented in the best way possible.