If you have a date at the Local Court and you do not want to be there, that is an ordinary reaction, not a failing. Here is the straight answer before the day arrives.
Not turning up will usually not end the case. Once police lay charges the matter is theirs to run, and it can keep going without you. What happens next turns mostly on whether a subpoena has been served on you, because staying away when one has can create a problem of your own.
Two things get listed at court in these matters: a criminal charge and an AVO application. They work differently, so this page covers both. Everything here is New South Wales law, and other states run these matters differently.
Who actually decides whether the case goes ahead
Most people think the victim has the power to drop charges, but in Australia, that’s not how it works. Once police lay charges, it’s no longer the victim versus defendant. It’s the police versus the defendant. And that means the police and the prosecution decide whether the matter goes ahead, not the victim.
Your wishes still count and a prosecutor will want to hear them, but they do not decide the result. Once charges are laid the law treats the offence as one against the community, not only against you, which is why police cannot simply drop it on request.
Two related steps have their own pages: how to withdraw your statement and whether you can drop charges before court.
What the magistrate can do if you are not there
There are four realistic outcomes, and which one you get depends on the evidence police already hold and the reason you are absent.
The matter is adjourned
The prosecutor asks for more time and the magistrate lists the case for another date. An adjournment is not an ending, and if you were subpoenaed for the first date the court will usually still expect you at the new one, so check with the prosecutor.
The matter is adjourned and a warrant is issued
If a subpoena was served and the court is not satisfied you had a good reason, it can adjourn and issue a warrant for you as a witness. The test the court applies is set out below.
The case runs on the other evidence
Police often have enough without your live account: your original statement, the triple-zero recording, body-worn video, medical records, independent witnesses. If that material stands on its own the charge proceeds. Here is what evidence police need.
The prosecutor offers no evidence and the charge is dismissed
Where nothing admissible is left without you, the prosecutor can tell the court they offer no evidence and the magistrate dismisses the charge. That call belongs to the prosecutor, not to you. Here is what happens when charges are dropped.
Most Local Court matters are run by police prosecutors. Where the Director of Public Prosecutions runs the matter instead, the ODPP Prosecution Guidelines set out when prosecutors consult before a charge is resolved or discontinued, and include a chapter on domestic violence offences.
Where you stand, depending on your situation
| Your situation | What usually happens | Risk to you |
|---|---|---|
| No subpoena served, and you tell police you do not want to proceed | Police record your view and decide whether the case runs on the rest of the evidence | Low. You are not under a court order to attend |
| A subpoena has been served and you do not attend | The magistrate can adjourn, and can issue a warrant for you as a witness | Highest risk on this page. It is treated as ignoring a court order |
| You gave a recorded (DVEC) statement and assume that is enough | The recording can stand as your evidence in chief, but you must be available for questioning | Moderate. People miss the second half of the rule |
| You are the defendant’s spouse, de facto partner, parent or child | You are compellable, so the usual family objection does not apply | Moderate. Being family does not excuse you from attending |
| There is no admissible evidence without you | The prosecutor may offer no evidence and the magistrate dismisses the charge | Low. The call is the prosecutor’s |
| The AVO is a police application and you do not attend | Police stay the applicant. The magistrate can adjourn, hear or dismiss it | Low to moderate. The order is not withdrawn because you stayed away |
Can a warrant be issued for me?
Yes, but the bar is not low. Before a court may issue a warrant for a witness who did not appear, it has to be satisfied of two things: that the non-appearance was without just cause or reasonable excuse, and that the person can probably give evidence relevant to the proceedings. Both limbs have to be met, and a warrant is a last resort rather than the standard response.
Evidence Act 1995 (NSW) s 194, Witnesses failing to attend proceedings.
‘I already gave the police a recorded statement, isn’t that enough?’
This is where a lot of people get caught out.
A complainant in a domestic violence matter can give their evidence in chief by recorded statement, known as domestic violence evidence in chief, or DVEC. That is only half the rule: you still have to be available for cross-examination and re-examination.
Available does not have to mean being in the same room as the defendant. Closed-circuit television from another room, a screen, or a support person beside you are all ordinary arrangements. Ask for them early, not on the morning.
Can I be made to give evidence against my husband, wife or partner?
Usually, yes. A spouse, de facto partner, parent or child of the accused is compellable in proceedings for a domestic violence offence against a family member, and the accused’s consent is not needed. One narrow exception applies, for a family member other than a spouse where the accused is under 18.
If you give evidence, you give it on oath or affirmation, and Legal Aid NSW puts the maximum penalty for perjury at 10 years’ imprisonment.
Criminal Procedure Act 1986 (NSW) s 279. Legal Aid NSW sets out what this means for domestic violence victims going to court.
A matter that shows how this really runs
Police charged a husband after they were called to the house. The next day his wife changed her mind, told police she did not want him charged and said she wanted him home.
That sounds like the end of it. Police told her they had her original statement, the triple-zero recording and statements from the neighbours, so they could keep running the case without her.
The lesson is worth knowing before your date: what police gathered on the night usually decides whether the matter survives, not what anyone says the next day.
Why people don’t want to attend, and what to do about it
Every one of these is a real reason.
- You are frightened of the defendant or their family. Raise it with the police prosecutor before the date and ask about alternative arrangements.
- You are still living together, or you want to work it out. Say so to the prosecutor. It does not end the matter, but they weigh it.
- You depend on their income, or the children do. Tell the court support service. They deal with this every day.
- You are worried about your visa. Get advice before the date. Staying away does not make the listing disappear.
- You feel ashamed, or responsible. You are not the one being prosecuted, and none of this is your doing.
- Someone has told you not to go. Tell the police prosecutor or the court support service before the date. Pressuring a witness not to attend is an offence in itself.
Threatening or intimidating a person connected with judicial proceedings carries up to 10 years’ imprisonment, and perverting the course of justice carries up to 14 years. This is also why police run these matters rather than having the victim choose – because especially in domestic violence matters, victims may be pressured to drop charges while still facing very real risks.
Crimes Act 1900 (NSW) s 322 and s 319.
What if it’s an AVO, not a criminal charge?
An AVO application is a separate track, and it does not work the same way.
On a police application the police are the applicant. You are the protected person, not the person running it, so changing your mind does not withdraw the application. If you do not attend, the magistrate can adjourn it, hear it on the material before the court, or dismiss it.
A defendant can also seek costs against police in limited circumstances, which Legal Aid NSW sets out here. Changing or ending an order is its own process, covered in our article on withdrawing a police AVO, and NSW Communities and Justice explains what happens at court.
How often do defendants miss their ADVO listing? Often enough that the NSW Government trialled a fix. The NSW Behavioural Insights Unit found that on average 18% of domestic violence defendants do not show up to their ADVO listing, and an SMS reminder cut non-attendance by 23%. Those figures measure defendants, not complainants.
If you’re the one facing the charge
Here is the honest position. The complainant not attending can weaken the prosecution case, and sometimes it ends it. It does not end it automatically though, and assuming it will is the mistake people make.
Contacting the complainant to encourage them not to attend is a serious mistake. It can breach your bail or an AVO condition, and expose you to the offences set out above. Speak to an AVO lawyer before you assume anything about your listing.
What to do before your court date
- Tell the police prosecutor about your safety concerns before the date, not on the morning.
- Ask about alternative arrangements: closed-circuit television, a screen, or a support person.
- At court, find the Women’s Domestic Violence Court Advocacy Program.
- Get free advice from the Women’s Legal Service NSW Domestic Violence Legal Advice Line on 1800 810 784, or LawAccess NSW on 1300 888 529.
The case is not yours to end. Once a subpoena has been served on you, attending is usually required. There are safer ways to give your evidence than being in the same room as the defendant, and you get them by asking early.
If you want to talk it through first, call me and my team on 1300 614 732 for a free 10 minute discovery call. Our AVO lawyers deal with these listings every week and will tell you plainly where you stand.
Frequently Asked Questions
What happens if a domestic violence victim doesn't show up for court in NSW?
The case usually continues. Once police lay charges a police prosecutor runs the matter, so the complainant cannot end it by staying away. The magistrate can adjourn, issue a warrant where a subpoena was served, let the case run on other evidence, or dismiss the charge if the prosecutor offers no evidence.
Does the victim have to appear in court?
Only if a subpoena has been served on you. Without one you are not under a court order to attend, though police may still proceed on the evidence they hold. With one, attending is required, and the court can act if you do not appear without just cause or reasonable excuse.
Can a domestic violence case go ahead without the victim?
Yes. Police regularly run these matters on the original statement, the triple-zero recording, body-worn video, medical records and independent witnesses. Whether the charge survives depends on whether that material is admissible and strong enough on its own, which is why what police gathered at the time matters so much.
Can I be arrested for not attending court as a witness?
A court can issue a warrant for a witness who fails to appear, but only if it is satisfied the non-appearance was without just cause or reasonable excuse and that the person can probably give relevant evidence. Both limbs must be met, and it is a last resort rather than the standard response.
Do I still have to attend if I gave police a recorded (DVEC) statement?
Usually yes. A recorded statement, known as domestic violence evidence in chief, can stand as your evidence in chief, but you must still be available for cross-examination and re-examination. You can often do that by closed-circuit television, behind a screen, or with a support person, if you ask before the date.
Can I be forced to give evidence against my husband, wife or partner?
In a domestic violence matter, generally yes. A spouse, de facto partner, parent or child of the accused is compellable in proceedings for a domestic violence offence against a family member, and the accused’s consent is not required. One narrow exception applies to a family member other than a spouse where the accused is under 18.
What happens at an AVO hearing if the protected person doesn't attend?
On a police application the police are the applicant, so the application does not lapse because the protected person is absent. The magistrate can adjourn the matter, hear it on the material before the court, or dismiss it. A defendant may seek costs against police in limited circumstances.
