In all criminal prosecutions the process starts when the alleged victim calls police. When police arrive at the scene statements are taken from the alleged victim (complainant) and any other witnesses that were present at the time of the alleged offence and could potentially give evidence relevant to proceedings.
The witness statements are usually inculpatory in nature – supports the complainant’s account of what happened. Witness statements can also be exculpatory in nature – supports the accused defence case. The most important statement for the prosecution is the complainants.
What happens then when a complainant gives a statement to police but fails to attend court on the first day of trial.
From the defence perspective, where there is no complainant there is no complaint and proceedings should be dismissed. However, as in most if not all areas of law the solution is not that simple.
Options for the court
The court has three options when a complainant fails to turn up to trial. The court can:
1. Adjourn the trial to another date to enable the complainant to attend on the future date, or
2. Adjourn the trial and issue a bench warrant for the arrest of the complainant, or
3. Dismiss the proceedings, sometimes with costs to the accused.
In determining how to proceed the court will consider:
1. The seriousness of the charges. Indictable charges before a jury are far more serious than a matter to be heard summarily before a magistrate,
2. Whether the complainant has been served with a summons to appear. If the prosecution has not issued a summons the court will require the prosecutor to provide reason as to why no summons was issued, this is particularly so for trial-by-jury cases,
3. Whether the complainant is likely to attend on the next occasion. Most often reserved for summary matter where there might have been some misunderstanding by the complainant of their required presence, and
4. Whether the complainant’s evidence is potentially critical to determining the case. If the trial can proceed on the basis of circumstantial evidence, without the complainant, then subject to defence objections, the trial could potentially proceed. Again the seriousness of the charge, determined on the basis as to whether it is to be decided on indictment or summarily, is a determining factor.
If the complainant fails to attend, the prosecution will normally apply for an adjournment because it is very difficult for the prosecution to prove its case to the required standard of beyond reasonable doubt without a complainant. The complainant’s statement made to police out of court without the complainant being present in court are hearsay and inadmissible. The prosecution may be able to lead evidence from other prosecution witnesses which may work in say traffic accidents.
In cases of assault it becomes more problematic to run a prosecution case without the person allegedly assaulted in court.
If the case is adjourned, the hearing will be ‘vacated’ and relisted on a future court date.
Adjournment and arrest warrant issued
The second option is where there is proof of service by way of a properly executed Affidavit of Service of the complainant being summonsed and fails to attend. The court on its own or on application by the prosecution will issue a bench warrant for the complainants arrest. Again the trial date will be vacated and adjourned to another trial date or directions hearing at which time the complainant will be brought into court from custody. A drastic measure and reserved for the most serious of cases.
The third option is for the court to dismiss the charge. The defence will invariably advance arguments for this to occur. The prosecution will advance arguments for one of the first two options to be exercised. What happens is determined on a case-by-case basis. Very often the defence and prosecutor have conferred out of court to potentially come to a common view of how the court should proceed: dismiss the charge, adjourn to am future date or issue an arrest warrant.
If the prosecution does not object to the charge being dismissed and the court is prepared to make orders accordingly, the defence will ask the prosecution to call its first witness rather than simply accept a dismissal/withdrawal of charge. If the prosecutor offers no evidence then a verdict of acquittal is entered enlivening the double jeopardy rule barring the prosecution from bringing its case at a future time should circumstances change.
Special policies apply in DV cases
In domestic violence cases, the default position is for the prosecution to proceed. In typical cases where the female spouse or partner of the accused does not want to proceed and expresses this on a number of occasions to the police investigating officer. These questions are not determined at the investigating officer level. A decision to discontinue or proceed in domestic violence cases must be made by a senior office such as an Inspector at the District office level. The decision determined on whether the evidence establishes a prima-facie case.
Invariably when police attend a domestic violence scene the person assaulted is often very forthcoming on what is alleged to amount to an assault. Statements taken at the time from the complainant and any witnesses able to say what happened as well as body-worn-camera footage is assembled to determine whether in fact there is a prima-facie-case.