The criminal justice system regularly deals with persons who make a complaint to police about their partner, but later decide that they want to know how to get domestic violence charges dropped.
There may also be circumstances where a complainant has explicitly told police that they do not want their partner charged, but police lay charges anyway.
Allegations are sometimes made out of spite, in anger, or due to a miscommunication. When the parties calm down and the dust settles, often both people want to reconcile but will still have the domestic violence offences pending in the Court.
While complainants may want the allegations against their partner or a family member to be withdrawn, it is not that simple.
Police Press Charges, Not the Complainant
A common misconception that people have is that the alleged victim can withdraw charges. This is not true. As police are the party that has laid the charges, only police can withdraw domestic violence charges.
The same applies to police AVOs (apprehended violence orders). You can read our guide on how to get an AVO dropped.
Charges can sometimes proceed where a complainant does not give any statement to police. Often a triple-0 call or a statement from another witness can be relied on.
Indeed, police have a general policy not to withdraw domestic violence charges or an AVO application unless there are good reasons.
Police Policy on Domestic Violence
The police policy on withdrawing domestic violence charges is contained in the NSW Police Domestic and Family Violence Code of Practice. The question of when do police withdraw charges is different in a domestic violence setting than any other.
Even if a complainant does not want criminal charges laid, police can still charge a person and apply for an AVO. This policy came about to protect victims who defend their abusers, despite having been subject to domestic violence.
The policy was implemented after a number of incidents where partners went on to attack victims shortly after charges or AVOs were withdrawn. Most often this involved male defendants and female victims. Therefore, when complainants would questions such as, how to drop charges against my boyfriend, there would be little assistance provided.
As a result, police will often not withdraw domestic violence charges or an AVO unless an experienced domestic violence lawyer is able to provide compelling reasons as to why they should be withdrawn.
This of course creates difficulties for those who are the victim of false complaints. It also has implications for a person who has been charged by police but was in fact the victim.
How to Get Domestic Violence Charges Dropped
Despite the above, criminal lawyers know how to get domestic violence charges dropped. The below is a general step by step guide:
- Arrange for the complainant to speak with an independent lawyer;
- That lawyer can prepare a retraction statement or letter on behalf of the complainant;
- Serve this letter or statement on police and the defendant's lawyer;
- The defendant's lawyer to prepare written representations to police to withdraw domestic violence charges.
Both the defendant and complainant will require experienced domestic violence lawyers representing them to have the proceedings discontinued. If this process can be completed early on, then it can be a solution for how to get charges dropped before a court date.
This process is specific to NSW, however similar elements apply to other jurisdictions. If you are researching how to drop charges against someone for domestic violence in Australia, it is important to ensure that the advice received is from the correct state.
It is also important to be aware that in NSW, AVO applications can be made by two groups of people:
- police (police AVOs), and
- complainants (private AVOs).
Complainants can withdraw private AVOs by themselves, without the assistance of AVO lawyers.
How to Get Domestic Violence Charges Dismissed
If police are not willing to withdraw the case, the next logical question is how to get domestic violence charges dismissed.
This will involve the case proceeding to hearing at Court. You will require an experienced criminal lawyer representing you who can cross-examine police officers, the complainant and any witnesses at length. Inconsistencies or deficiencies in the prosecution case will often be revealed in this way.
There will also need to be complex legal arguments advanced at the Hearing as to why the charges have not been proved beyond reasonable doubt. While the overall procedure is much more complex, this is a summary of how to get a domestic violence case dismissed.
False Domestic Violence Allegations
Section 314 of the Crimes Act 1900 now makes it a crime to accuse a person of a criminal offence if they know that the person is innocent.
The maximum penalty for making a false allegation is 7 years imprisonment.
And under section 49A of the Crimes (Domestic and Personal Violence) Act 2007, it is a criminal offence to make a false AVO claim if you know that it is false.
The maximum penalty for this offence is 12 months imprisonment and/or a $1,100 fine.
If you are facing false accusations, you should immediately speak to a specialist criminal who can work towards having the case withdrawn and dismissed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.