No Means… Still Yes? When Prosecutors Ignore the “Victim’s” Wishes

Yes. You heard that right. The prosecutors – of all people – are often the real violators of consent.

In the emotional and legally fraught arena of criminal law, there’s a pervasive myth that if the complainant (often called “the victim”) wants the charges dropped, the case will quietly disappear.

That couldn’t be further from the truth.

Here at National Criminal Lawyers Sydney, we’ve represented countless individuals – many of whom are first-time defendants – who are stunned to discover that even when the alleged victim retracts their statement or pleads with police to discontinue proceedings, the Director of Public Prosecutions (DPP) or NSW Police often forge ahead anyway.

This legal and ethical paradox, where a person’s withdrawal of consent to prosecution is effectively overruled, deserves scrutiny. Who truly has the say in prosecuting intimate, personal allegations? And at what cost?

A Prosecutor’s Consent Is the Only One That Matters?

Under NSW law, once a complaint is made and charges are laid, it is no longer up to the complainant to decide whether or not a matter proceeds. As theDPP Prosecution Guidelines make clear:

“The views of the victim must be taken into account and given due consideration but are not determinative. It is the public interest, not any private individual or sectional interest, that must be served. The decision to proceed by way of charge resolution or to discontinue all charges rests with the Director or the Director’s delegate.”
 (See NSW DPP Guidelines, s5.6)

In theory, this policy exists to protect vulnerable complainants – especially in cases involving domestic violence or sexual assault – who may be pressured, coerced, or emotionally manipulated into withdrawing their statements. However, in practice, it can also strip agency from those same individuals, turning them into tools of the state rather than participants in justice.

At National Criminal Lawyers Sydney, we frequently encounter scenarios where couples reconcile, alleged victims recant, or say the incident was exaggerated – yet prosecutors march forward, citing “the public interest.”

When “Victimless” Prosecutions Become Punitive

The term “victimless prosecution” is now common in the domestic violence landscape. But far from being a technical abstraction, it can have very real, painful effects on families, relationships, and reputations.

In fact, police can pursue Apprehended Domestic Violence Orders (ADVOs) alongside or independent of criminal charges.

Sections 39 and 40 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) deal with situations where police must or can apply for an ADVO:

• Section 39 – Police officers must make an application for a provisional order in certain circumstances, such as when a domestic violence offence is suspected or has been committed, and it appears necessary to ensure the safety and protection of the person.
  
• Section 40 – Police officers may make an application for a provisional order in other circumstances not covered by s39, based on their discretion.

In many cases, these are interim orders with immediate and drastic conditions – exclusion from the home, no contact with children, or complete non-communication with the complainant – enforced even before guilt is established.

Even if the alleged victim actively opposes the ADVO or criminal proceedings, police and prosecutors often proceed on the basis that the complainant is either lying now, or was lying before – and either way, the state claims the final say.

Stalking, Intimidation and “Ambiguous Evidence”

Perhaps nowhere is this conflict clearer than in charges under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which covers stalking or intimidation with intent to cause fear.

The definitions are broad. According to the statute, intimidation includes:

• Conduct amounting to harassment,
  
• Conduct that causes a reasonable apprehension of injury, or
  
• Any attempt to control or monitor another person’s movements or associations.

In our practice at National Criminal Lawyers Sydney, we’ve seen stalking and intimidation charges laid based on text messages, silent phone calls, or simply showing up at a shared space. These cases can and often do proceed even after the complainant expressly tells police they no longer fear the accused or want the matter heard.

The NSW Bureau of Crime Statistics and Research, in its report of Trends in domestic violence-related stalking and intimidation offences in the criminal justice system: 2012 to 2021, reveals that:

• Domestic violence-related stalking/intimidation incidents recorded by NSW Police increased 110 per cent from 2012 to 2021 (from 8,120 to 17,063).
  
• Police legal proceedings for domestic violence-related stalking/intimidation incidents increased 163.8 per cent from 2012 to 2021 (from 4,469 to 11,789).

Based on these findings, the report concluded that:

“The substantial increase in stalking/intimidation offences in the criminal justice system seems more likely to reflect changes in the police response to domestic violence rather than a change in criminal behaviour.”

So, police are increasingly initiating legal proceedings against individuals accused of stalking or intimidation, often as a precautionary measure.

Yet, the personal consequences of facing such charges remain just as severe as ever – from reputational harm and restrictive bail conditions to the loss of employment or professional opportunities.

At National Criminal Lawyers Sydney, we’ve consistently monitored these evolving enforcement patterns and continue to assist individuals who may be unaware of these deeper structural and systemic shifts in the way such allegations are handled.

Are Courts Just Going Through the Motions in Domestic Violence Cases?

There’s a dangerous trend emerging: courts are being used to rubber-stamp prosecutions, even where complainants express doubts or wish to withdraw support. Judicial officers often cite the precautionary principle – “better safe than sorry” – and allow the matter to run, despite a lack of cooperation from the complainant or hard evidence.

This is compounded by the fact that prosecutors rarely subpoena reluctant complainants, relying instead on recorded police interviews (ERISP), hearsay exceptions, or circumstantial evidence. The result? Defendants can face months, sometimes years, in limbo – only for the matter to collapse late in the process.

Recent data reflects this systemic inefficiency: according to the NSW Judicial Commission, conviction appeals in domestic violence matters succeed at a rate of 38.6%, while severity appeals succeed in 63.7% of cases. These figures raise serious questions about the quality of initial fact-finding and decision-making, and whether courts are truly upholding due process – or simply managing risk through deference to prosecutorial decisions.

What About False or Misleading Complaints?

Let’s address the elephant in the room: false allegations.

We at National Criminal Lawyers Sydney believe that every genuine complainant deserves protection, dignity and support. But allegations are not always made in good faith. In high-conflict family law proceedings or bitter relationship breakdowns, criminal accusations can become tools of manipulation or revenge.

Despite the seriousness of making a false complaint (a criminal offence under s314 of the Crimes Act 1900 (NSW)), prosecutions for false allegations are rare. The system’s reluctance to pursue them stems from a desire not to discourage real victims – but this inaction can leave wrongly accused individuals permanently scarred.

National Criminal Lawyers Sydney is committed to providing clear, strategic advice to individuals facing false or unfounded allegations, ensuring their rights are protected throughout the legal process.

Read our detailed guide on how to defend yourself against false allegations of violence.

Sexual Assault and the Complexity of Consent

When it comes to sexual assault, the stakes are even higher.

Under section 61I of the Crimes Act 1900 (NSW), sexual assault is defined as sexual intercourse without consent, with knowledge of or recklessness as to the lack of consent. While the standard of proof is “beyond reasonable doubt,” investigative bias, social panic, and prosecutorial overreach can result in charges proceeding even when the complainant no longer supports the allegation.

In several recent matters handled by National Criminal Lawyers Sydney, clients were prosecuted even after the complainant wrote formal retraction letters. In some cases, these letters were excluded from evidence, dismissed as unreliable, or ruled inadmissible under section 293 of the Criminal Procedure Act 1986 (NSW), which limits the ability to adduce sexual history evidence.

Where to From Here? Rebalancing the Scales

So, what should be done?

We are not advocating for prosecutors to blindly accept every withdrawal request. Coercion and manipulation do happen. But a blanket policy of ignoring the wishes of complainants – especially in cases involving ambiguous evidence or clear recantations – does not serve justice either.

National Criminal Lawyers Sydney calls for:

• Greater transparency in how prosecutorial discretion is applied;
  
• A clearer legal framework for distinguishing between protective action and punitive overreach;
  
• More robust procedures for allowing complainant-led withdrawals with safeguards;
  
• And serious reform around early resolution, to prevent dragging out matters doomed to collapse.

Justice for All Must Mean Listening to All

Whether it’s stalking, assault, intimidation, sexual assault, or domestic violence, the criminal justice system must balance protection of victims with fairness to the accused.

But when the system stops listening – not just to the accused, but to the very person it claims to protect – justice risks becoming performance rather than principle.

At National Criminal Lawyers Sydney, we believe that consent matters – in every context. That includes when someone says they don’t want a prosecution to go ahead. It’s time prosecutors started listening.

Need legal advice or representation? Contact us for a free first conference with an experienced criminal defence lawyer.