The Local Court Practice Note 2 of 2012 - domestic and personal violence proceedingsrequires the applicant to file all witness statements in support of his or her application at the court by a certain date (usually two weeks after the mention). Practice Notes are issued by courts to assist in managing cases and set out the steps people are expected to take to prepare a case for hearing. In a police application, the applicant police officer will arrange to prepare witness statements and a brief of evidence to be served on the defendant. The defendant is then required to file a statement in reply. Statements must be signed and dated to certify that the statement is true and correct and should only be about relevant issues for seeking or defending the application. As a statement can be tendered as a witness’s evidence in an AVO hearing it is important to seek legal advice before providing a statement.
Although there are some protections to guard against defendants making admissions of guilt in a statement, it is advisable for defendants to seek legal advice if there is doubt.
Exchanging statements can help clarify the issues in dispute, weed out frivolous and vexatious applications, and avoid a ‘trial by ambush’. A statement should include all relevant information. It may be tendered at an AVO hearing as a witness’s entire evidence. If a party wants to add any more information before the hearing it will need to ask for the court’s permission. Amendments can be made in statement form or, with permission of the court, by giving oral evidence at court. While the witness statements should refer to all relevant supporting evidence such as photos, it is not necessary (or practical) to annex all potential supporting items to the statement. However including relevant photos or ‘Facebook’ screen shots or lists of harassing text messages can be useful for applicants and may save them from having to amend the application before the court date.
Witness statements may help convince a defendant to consent to an AVO before a hearing. However, even if there is a statement, a witness may need to be cross-examined (asked questions by the other party to challenge their version of events) on the information contained in it.
At a mention following an exchange of statements the magistrate or registrar will check to see if the Directions Order has been complied with. If the orders are not complied with, the Practice Note provides that the application for an AVO may be struck out. However, the magistrate may adjourn for another mention if satisfied there is a good reason for non-compliance. Non-compliance with an order for exchange of statements could result in a costs order.
If the parties have complied with the exchange of statements then the matter may be listed for a hearing date. In some courts this may mean waiting up to three months. An interim AVO may be made or extended (continued) until the hearing date.
One way of obtaining documents that belong to other individuals or services so they can be used in court proceedings is to issue a subpoena. A subpoena is a court order that requires a person to produce specified documents to the court, or which orders a person to attend court to give oral evidence (tell their version of events to the court).
In a police application, the police will issue the subpoenas. In a private application the applicant or their solicitor will prepare subpoenas to be issued by the court. There are costs associated with issuing and serving subpoenas and with a person’s reasonable expenses in complying with the subpoena. These costs are the responsibility of the person who issues the subpoena.