A statement is a fundamental tool within the Criminal Justice System and one of the essential ingredients of a brief of evidence. Taking a statement is the most common method used to obtain, record, and present information from witnesses, offenders, and police. Statements are integral to the fulfillment of a fair trial: victims and witnesses are provided the opportunity to tell their story and, when the prosecution serves a witness statement upon the defendant, the defendant is granted the essential privilege of knowing and being prepared for the case against them.
Once made, however, you may have reasons that you would like to withdraw a statement made to the police. Whether you have changed your mind after making the statement in the heat of an event, are reluctant to appear in court, or wish to protect the defendant from being prosecuted, the following outlines the law around the making and potential withdrawal of statements.
What is a statement?
A statement is a written record of a victim’s version of the event of an offence, given in their own words. If the accused is charged with this offence and they plead not guilty, this statement will form part of a ‘brief of evidence’ that the prosecutor must serve on the accused person. This brief of evidence is governed by section 183 of the Criminal Procedure Act 1986 (NSW) (‘the Act’). The governing principle behind serving such a brief of evidence is for the defendant to know the case before them and not be taken by surprise.
A written statement, when tendered by the prosecutor, is admissible as evidence to the same extent as if it were oral evidence. Section 283B of the Act sets out the form and requirements for written statements to be legitimate, which are as follows:
(1) A written statement may be in the form of questions and answers.
(2) A written statement must specify the age of the person who made the statement.
(3) A written statement must be endorsed in accordance with the regulations by the maker of the statement as to the truth of the statement and any other matter required by the regulations.
(4) A written statement or such an endorsement on a statement must be written in a language of which the person who made the statement has a reasonable understanding.
(5) If the written statement, or part of it, is in a language other than English, a document purporting to contain an English translation of the statement or part must be annexed to the statement.
For the purposes of this section, a written statement must be ‘endorsed’ as follows:
This statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true.
The language used in the statement should be that of the witness or victim, not that of the policeman taking it.
As statements that are taken by police are often required for production at court, it is essential that they are of the highest standard. The quality of a statement will reflect upon an officer’s professionalism, and they are carefully scrutinised by both legal representatives and members of the judiciary. Statements must comply with the rules of evidence, and they must be accurate and truthful. If they do not comply with the rules of evidence, information captured in the statement may be inadmissible in court proceedings.
It is important to note that when you make a statement as a victim and the accused is charged, there is a presumption that you will be required to go to court and give evidence.
Am I obliged to make a statement to the police?
You are never under an obligation to provide a statement or to assist the Police in any way if you do not wish to, and you cannot be forced to do so. You have a right to silence and may refuse to answer almost any questions put to you by the police. An exception to this is that when Police ask for your name, date of birth, and address, you will generally be required to answer. Even then, however, they should inform you as to why they are seeking this information. Another exception can arise in motor-vehicle offenses where you are issued with a Form of Demand.
You should always seek advice from a reliable Criminal lawyer before making a statement at the scene, over the phone, or at the police station.
Can I withdraw a statement once made?
If at a later date, you wish to withdraw or alter a statement you made to the police, you can contact the officer in charge of investigating the matter. The decision will ultimately remain at the discretion of this officer in charge, who will consider the reasons you are choosing to withdraw your statement, such as a lack of interest or change of mind.
Representations to Police
One mechanism for seeking to have your statement withdrawn is by way of ‘representations’ to the police. You may obtain independent legal advice from a lawyer who does not act on behalf of the defendant, and they can write and file representations with the police for the withdrawal of the statement. While the outcome of this will still be at the discretion of the officer in charge, a criminal lawyer may be able to utilise their experience interacting with Police to effect the result you are hoping for.
It is necessary to note, however, that withdrawing your statement to police may not prevent the case from proceeding against the accused. The police may have collected other evidence, such as CCTV footage, evidence from other witnesses, or an admission, sufficient to proceed with criminal charges in the absence of your statement.
Police may also choose to pursue the matter if they believe the victim is withdrawing their statement due to fear, intimidation, or influence which is frequently a concern in a domestic violence case. In this event, the police may provide extra support and protection to the victim. Police will also bear the public interest in mind when deciding whether or not to pursue a charge.
Subpoenas
Finally, while you cannot be coerced into making a statement and it is possible to withdraw one once made, there is still a possibility that you will be compelled by way of subpoena to give evidence in court. Failure to comply with a subpoena breaches a court order, which allows the court in certain circumstances the power to issue a warrant for your arrest for the purpose of your attendance in court.
What is the penalty for false statements in NSW?
Choosing to withdraw a statement is not admitting to telling a lie therein. Should you admit to lying in a statement, however, this may have implications for you including criminal charges.
Public Mischief
The Crimes Act 1900 (NSW) outlines the offence of ‘Public mischief’ under section 547B. This section dictates that any person who, by any means, knowingly makes to a police officer any false representation that an act has been or will be done, or that any event has occurred or will occur, which is represented in such a way to call for an investigation by a police officer, shall be liable on conviction before the Local Court to imprisonment for 12 months, a fine of 50 penalty units (currently $5,500), or both.
False Statements
Further, section 92 of the Criminal Procedure Act 1986 (NSW) concerns false statements or representations in committal proceedings while section 189 governs the same in pre-trial procedures.
Section 92 appears in Chapter 3, Division 6 of the Act, which governs the examination of prosecution witnesses in indictable procedures. It provides that a person who made a written statement tendered in committal proceedings under this division is guilty of an offence if the statement contains any matter that, at the time the statement was made, the person knew to be false, or did not believe to be true, in any material respect, and that was inserted or caused to be inserted by the person in the statement. This offence carries a maximum penalty of imprisonment for 5 years and/or a fine of 100 penalty units (currently $11,000).
Section 189 governs pre-trial procedures in a summary procedure and establishes a corresponding offence for making a written statement, tendered in evidence in proceedings, if that statement contains any matter that the person knew to be false, or did not believe to be true, at the time it was made. If dealt with summarily, this offence carries a maximum penalty of imprisonment for 12 months and/or a fine of 20 penalty units (currently $2,200). If dealt with on indictment, the maximum penalty is imprisonment for 5 years and/or a fine of 50 penalty units (currently $5,500).
Key Takeaways
- Individuals are not obliged to make a statement to NSW police and can decline without legal repercussions.
- A statement can be withdrawn by contacting the investigating officer, but the decision rests with them, considering reasons such as a change of mind or desire not to proceed.
- Withdrawing a statement may not halt proceedings if other evidence exists.
- Making false statements can lead to criminal charges, including public mischief and false statements in committal proceedings, with significant penalties.
- Legal advice is recommended before making, altering, or withdrawing a statement to ensure informed decisions and understand potential consequences.
Conclusion
While you are under no obligation to make a statement to the police, once made it is at their discretion whether you can withdraw it or, if you do, whether they will choose to pursue charges regardless. Further, there are potentially significant consequences for making a false statement. For these reasons, it is always wise to seek legal advice before making, or seeking to alter, a statement to the police.
If you or a loved one would like advice as to making a statement, having one altered or withdrawn, or have been charged with making a false statement, please contact Hamilton Janke Lawyers anytime 24 hours a day, 7 days a week, where our dedicated team will do everything they can to ensure a positive result.
Written By
James Janke
James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia
