“She didn’t want to press charges” – why domestic violence prosecutions in NSW continue even when the victim changes their mind

It is one of the most common things people say after a domestic violence arrest: “She has already told police she doesn’t want to go ahead with this. She is not going to cooperate. So the case will be dropped, right?” In many cases in NSW, the answer is no – and understanding why matters enormously if you are facing a domestic violence charge and have been told by the other person that they want no part of the prosecution.

NSW domestic violence law and prosecution policy are deliberately structured so that prosecutions can proceed, and in many cases will proceed, without the cooperation, support, or even consent of the alleged victim. This is not an oversight. It reflects a deliberate policy position backed by decades of research showing that victim reluctance and recantation are among the most common features of domestic violence cases, and that treating victim withdrawal as dispositive would allow the most serious perpetrators to avoid accountability simply by pressuring or convincing their partners not to participate.

According to BOCSAR, the number of adult alleged offenders proceeded against for domestic violence offences reached a record high of 45,984 in 2025. The share of domestic violence assault incidents resulting in a criminal charge rose from 65.7% to 69.4% in a single year. Police are charging more aggressively, and that charging rate does not depend on ongoing victim cooperation.

Who controls the decision to prosecute

In NSW, domestic violence matters are prosecuted by NSW Police and, in more serious matters, the Director of Public Prosecutions. The prosecution belongs to the State, not to the individual who made the complaint. Once police have formed the view that a crime has occurred and that there is sufficient evidence to support a charge, the decision about whether to proceed rests with them – not with the person who was allegedly harmed.

The NSW Domestic Violence Framework explicitly recognises victim reluctance as a common and expected feature of domestic violence cases. Police are trained to gather independent evidence at the scene specifically to reduce the degree to which the prosecution’s case depends on the ongoing cooperation of the complainant. The policy intention is clear: the decision to charge should be driven by the available evidence, not by what the complainant says they want in the days or weeks following the incident.

What independent evidence looks like – and why it matters

The evidence-gathering approach in domestic violence cases is specifically designed to capture what happened at the scene, in ways that do not depend on the complainant’s later account. Police attending a domestic violence call typically gather: body-worn camera footage from every officer present, recordings of the 000 call in which the circumstances were reported, photographs of injuries, property damage, or the state of the premises, records of any admissions or statements made by the defendant at the scene, observations of the complainant’s emotional state and demeanour, medical records where injuries are treated, records of any children present and their observations, and prior police attendance records at the same address.

This material is gathered immediately. By the time a complainant decides she does not want to proceed – perhaps the next day, perhaps two weeks later – the police brief may already contain enough independent evidence to support a prosecution without requiring her to give evidence at all. Body-worn camera footage is particularly powerful: it captures the immediate aftermath of an incident in a way that a later recantation cannot easily explain away.

What happens when the victim changes their story

Recantation – where a complainant withdraws their original account, says they were exaggerating, or says the incident did not happen as described – is a well-documented feature of domestic violence proceedings. Courts, prosecutors, and police are all trained to treat recantation with significant caution, precisely because it is so common and because the reasons for it – fear, financial dependence, love for the accused, pressure from family members, or direct pressure from the accused – are well understood.

Under the Evidence Act 1995 (NSW), a witness who gives evidence in court that is inconsistent with a prior statement they made to police can be cross-examined on that prior statement. If the complainant told police on the night of the incident that she was punched, and she comes to court and says she was not, the prosecution can produce the statement she gave to police and question her about the inconsistency in front of the magistrate or jury.

In appropriate cases, a recanting witness can be declared a hostile witness, allowing the prosecution to cross-examine their own witness. This is not common in the Local Court but it does occur in more serious matters where the original account was detailed and compelling. Even without a hostile witness declaration, the prosecution can rely on the prior inconsistent statement as evidence in many circumstances.

The ERISP interview and what was said at the scene

One of the most significant pieces of evidence in many domestic violence prosecutions is what the accused said to police at the scene or in a later recorded interview. An ERISP (Electronically Recorded Interview of a Suspected Person) is a formal recorded interview at the police station. Anything said in that interview – including partial admissions, explanations, or denials that are internally inconsistent – becomes part of the prosecution brief.

Even statements made informally at the scene, before the accused was formally cautioned, can be admissible in some circumstances. Police officers record what the accused says in their notebooks and in their body-worn camera footage. A defendant who said “I didn’t mean to hurt her, I just grabbed her arm” at the scene has provided evidence of physical contact and, potentially, evidence of intent. A defendant who said “we fight all the time, she always says she’ll call the cops” may have provided evidence of a prior history of conflict.

This is why the right to silence is not just a technicality in domestic violence cases. In matters where police intend to proceed regardless of whether the complainant cooperates, early admissions made before legal advice is sought can remove the prosecution’s need to prove elements they might otherwise struggle to establish independently.

Tendency and coincidence evidence

NSW courts may admit evidence of prior incidents between the same parties to support a domestic violence prosecution. Under Part 3.6 of the Evidence Act, tendency evidence – evidence showing that the accused has a tendency to act in a particular way – is admissible where it has significant probative value. In DV matters, this can mean that prior AVO applications, prior police attendances at the address, prior medical records, or prior admissions made during other proceedings can be placed before the court as evidence supporting the current charge.

This is one of the reasons why the overall history of a relationship becomes relevant even to a prosecution for a specific, isolated incident. A single push might be harder to prosecute on its own. The same push, placed in the context of a documented history of similar conduct, is a different matter.

When the victim is subpoenaed

In some circumstances, particularly where the original account was clear and well-documented and the recantation is itself suspicious, police or the DPP can issue a subpoena requiring the complainant to appear and give evidence. A subpoena is a compulsory court order. Failure to comply with a subpoena without a lawful excuse is contempt of court. Being pressured to change your story before the hearing – or being told by the accused’s family not to appear – does not provide a lawful excuse.

Subpoenas are used selectively. They are most likely in serious matters, where there is clear independent evidence of violence, and where police believe the recantation has been procured through pressure. They are less common in less serious matters where the prosecution case was heavily dependent on the complainant’s own account.

What this means if you are facing a DV charge

If you have been charged with a domestic violence offence and the alleged victim has told you she does not want to proceed, do not assume the matter will be withdrawn. Assess the situation based on what evidence police actually gathered, not on what the complainant is currently saying. In many cases, the police brief will contain sufficient independent material to support a prosecution regardless of the complainant’s current position. In other cases – particularly where there was no body-worn camera footage, no 000 call, no injuries, and no independent witnesses – the matter may indeed be more difficult for police to pursue without the complainant’s evidence. But that assessment requires a careful analysis of the actual brief, not a general assumption.

Contact Us

At National Criminal Lawyers, we handle domestic violence charges across all stages – from the night of arrest, through contested hearings, to appeals. We understand the particular dynamics of cases where victim cooperation is uncertain or withdrawn, and we know how to build a defence that addresses the evidence actually before the court rather than the evidence that was expected.

Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.