Body Worn Cameras and Domestic Violence Evidence in Chief Statements
In the heat of the moment, people often say things that are not true. It may be due to anger, frustration, resentment, intoxication, or pressure from an authoritative figure. NSW Police often capture these statements using body-worn cameras and use the recordings as evidence that a crime has been committed.
A witness is entitled to correct information provided to NSW Police and should be encouraged to do so.
Case study:
A couple with children had an argument. The husband was too busy searching for his wallet to help get his children to bed. During the argument, his wife (“the witness”) threatened to call the police. She did this out of anger. She called 000 to ask for advice about “domestic violence”. She was pressured to justify her decision to make the call, and said she had been pushed by her husband.
A push in these circumstances amounted to an assault, and police were contacted by the 000 operator. Police attended their unit later that night. According to the witness, because she didn’t think it was serious and had already told 000 it was a push, she repeated the lie. This lie was recorded on a police body-worn camera. She was then told she had to go to the police station and give a statement. She provided a domestic violence evidence in chief statement to police containing the same lie.
Police charged the husband with assault.
The witness knew her husband was not guilty of the charge and wanted to tell the truth. She went to the police station, where she had given the statement and told them the truth. The on-duty police officers refused to take a statement from her.
The witness contacted the police officer who laid the charge, but he also refused to take a further statement from her.
The witness approached a solicitor and asked for advice. The solicitor, who had no involvement with the husband or the case, helped her to prepare an affidavit and served it on the police.
The initial police response to the affidavit was that they would leave it to the court to decide whether the husband was guilty or not. The charge was subsequently (and very reluctantly) withdrawn by NSW Police on the day of the hearing.
A Perfect World v NSW
In a perfect world, the NSW Police would be impartial investigators, more interested in the integrity of the investigation than the next press release. I have been informed that general duties police officers are required to take legal action in 70% of domestic violence related call-outs. That is, they must charge and/or make an application for an apprehended domestic violence order if they receive any information of a domestic violence nature. It doesn’t matter if they have no evidence to support the allegation, if an alleged victim refuses to give a statement or whether, for some other reason, there are no prospects of conviction or evidence of danger. This is why NSW Police press releases about domestic violence should often be taken with a pinch of salt.
NSW Police
If a witness wants to change, amend, or correct a statement they gave to NSW Police, I recommend contacting the police officer who took the statement. The police officer should facilitate the taking of an additional statement. When communicating with the police about the issue,
Solicitor
A witness may also approach a solicitor who has no involvement with the case to obtain legal advice and prepare an affidavit. An affidavit, once sworn, can be served on the police for their consideration of the charge.
If possible, obtain a copy of your original statement before making an appointment. Your original statement will assist the solicitor in giving your advice. This will improve the quality of the advice and save a lot of time (and money).
DIY
A witness can prepare their own affidavit and simply have it sworn by a solicitor or justice of the peace before providing it to NSW Police.
This is a perfectly reasonable option for most people, but I would always recommend getting legal advice before doing this to ensure you understand any associated risks and know how to protect your interests.
Summary
The manner in which NSW Police conduct investigations, lay charges and make applications for apprehended domestic violence orders frequently leads to hardship and injustice. Every witness should be encouraged to tell the truth, and if they haven’t, to correct the record.
We’ve all said things that, on reflection, are not true or misleading. If this describes your situation, do something about it.