The complainant is the alleged victim in an offence.
Contrary to popular belief, complainants do not ‘press charges’, they are not the ones ‘taking the matter to court’ and it is not ‘their case’.
Rather, it is a prosecuting body such as police or the Crown that ‘presses charges’, and who is in charge of the criminal proceedings from start to finish.
Complainants are simply prosecution witnesses.
This means that the decision to withdraw or proceed with criminal cases, to amend charges and to call witnesses is made by the prosecuting body – again, not by the complainant.
In fact, the prosecution will often go ahead with a criminal case even if the complainant wants the charges to be withdrawn.
The role of the prosecutor
The prosecutor is not the complainant’s lawyer.
He or she is not there to act on the complainant’s instructions. That said, prosecutors will often consider a complainant’s wishes and keep them informed during the criminal process.
Prosecutors act on behalf of the prosecuting entity; whether that be the State, police, RMS, local council or other body, and the prosecutor’s job is to act in the interests of that body.
Although the prosecuting body’s interests will often coincide with that of the complainant, this is not always the case – and cases will often go ahead even if the complainant is adamant that this will be against his or her interests.
The position of the complainant
As stated, the complainant is simply a witness in the prosecution case – although their testimony may be crucial in proving the charges.
Complainants will normally be subpoenaed to attend court proceedings; which means that they are required by law to come to court.
Victim Impact Statements
If a defendant is being sentenced for a crime, complainants may be offered the chance to provide a Victim Impact Statement (VIS), which may explain the harmful effects of the crime upon the complainant’s life.
VISs must be in writing, but can include pictures, drawings and other images. The rules for VIS are covered in Part 3, Division 2 of the Crimes (Sentencing Procedure) Act 1999.
However, the court will ultimately decide whether a VIS will be allowed in court, and the weight (if any) which will be placed upon its contents.
AVO cases
Although apprehended violence orders (AVOs) will often accompany criminal proceedings for offences like assault and reckless damage, AVOs are not criminal proceedings themselves – rather, they are technically civil cases.
This means that AVOs do not come with criminal records, although they may affect a person’s ability to obtain certain licences, such as security and firearms licences.
There two types of AVOs: those sought by police, and those applied for privately.
While private AVOs may be withdrawn by the complainant, police will decide whether to withdraw police AVOs. Indeed, the general policy of the NSW Police Force is not to withdraw AVOs that come about through domestic violence situations.
Again, this means that police will often go ahead with AVO cases even if the complainant is adamant that she or he wants them dropped.
In a nutshell
At the end of the day, complainants have less of a role in criminal proceedings than many people realise – in the words of former NSW Chief Justice Spigelman, they play “virtually no role in criminal proceedings” apart from being witnesses.
