Written statements and evidence

If the police have applied for an Apprehended Domestic Violence Order (ADVO) on your behalf, the police may have recorded an interview with you when you made the complaint. This may be a video or audio recording and is called the Domestic Violence Evidence in Chief (DVEC) recording. 

If the defendant is opposing the police’s application, the police may use your recorded interview as your evidence in chief at the hearing. When the DVEC is played, the Court must be closed and everyone not involved in the case will have to leave the courtroom.  

If the police are going to do this, they must give a copy to the defendant. 

If the defendant is represented, the police will give a copy of the video recording to the defendant’s lawyer. 

If the defendant is unrepresented, the police won’t give them a copy of the video recording, but they must serve the defendant with a copy of the audio extract of the recording. 

Where it is reasonably practicable, the police must give an unrepresented defendant the opportunity to view the video recording at the police station before the hearing. If they can’t, the police prosecutor must give them the opportunity to view the video recording on the day of the hearing. 

To get an ADVO, you must prove that you are fearful the defendant will:

• commit a domestic violence offence against you
• intimidate you or a person with whom you have a domestic relationship, or
• stalk you.

This is a 'subjective test' - it is based on what you actually feel.

You must also prove that your fear is based on reasonable grounds. This is an 'objective test' – it is based on what a reasonable person in your situation would feel.

You don't have to suffer actual violence to get an AVO. 

The Court can make an AVO even if you don’t actually fear the defendant, where you:

• are a child
• are a person of appreciably below average intelligence function
• have reasonable ground to fear a domestic violence offence
• have been a victim of a personal violence offence committed by the defendant on more than one occasion, there is a reasonable likelihood that the defendant will commit a further personal violence offence against you, and the AVO is necessary to protect you. 

To get an APVO, you must prove that you are fearful the defendant will:

• commit a personal violence offence against you
• intimidate you, or
• stalk you.

This is a 'subjective test' - it is based on what you actually feel.

You must also prove that your fear is based on reasonable grounds. This is an 'objective test' – it is based on what a reasonable person in your situation would feel.

You don’t need to prove that you have been the victim of violence to get an APVO. 

The Court can make an APVO even if you don’t fear the defendant if you are:

• a child
• a person of appreciably below average intelligence functioning.

Your evidence is what you use to prove the facts in your case.

There may be different types of evidence you can use depending on the circumstances of your case, such as:

• written statements
• documents, such as copies of emails or text messages
• photographs or videos.

You need to be clear on what facts you want to prove before you start collecting your evidence.

Where possible, you should use evidence that speaks directly to the facts.  

Usually, the Court will make directions (orders) for you to file and serve your statements first. You will usually be given no more than two weeks to do this.

The defendant will then have to file and serve their statements. They will be given a further two weeks to do this.

Your statement and your witnesses’ statements are very important.

These statements must include all of the evidence you want to give to the magistrate. You and your witnesses will not be able to give any more evidence at the hearing, unless you are given permission by the Court. You will only be able to be cross examined at the hearing (asked questions by the defendant or their solicitor).

In your statement you should include:

• information about you and the defendant
• the incident or incidents
• why you need the AVO, and
• how you feel about the defendant.

A witness statement can be written by somebody who saw or heard something that supports your claim, for example, a person who:

• saw the defendant assault you
• saw your injuries
• can say that you are in fear of the defendant.

Sample: Sample protected person witness statement

While you are preparing your witness statement, you should also gather supporting evidence to attach to your witness statement.

Your supporting evidence could include:

• hospital records
• doctor's reports
• police incident reports
• photographs
• copies of emails
• copies of text messages
• comments on social media, such as Facebook and twitter.

To get a copy of this information you may need to issue a subpoena, a court order that makes someone give documents to the Court or come to court to give evidence, or apply to the police for a Police Incident Report.

There is no set form for a witness statement, however, you should write your statement in a clear and logical way. You should also write the statement using your own words. 

When setting out your statement is a good idea to:

• use white A4 paper
• type if possible, or use neat, clear handwriting in black or blue pen
• use only one side of the paper
• write the name of the person making the statement at the top of the page

For ​​example: ​

Statement of Elizabeth Smith

There are certain things that you should include in your statement. You should write your:

• name
• address (unless you have concerns for your safety)
• age and;
• occupation

For example:

I, Elizabeth Smith, of 12/100 Victoria Road, Double Bay NSW 2028, born 17 September 1975, nurse, state:

OR​

I, Elizabeth Smith, of 12/100 Victoria Road, Double Bay NSW 2028, aged 36, nurse, state:

You should then include the details you want the court to consider. You can do this by using:

• short, numbered paragraphs, or
• a question and answer format.

The statement should include:

• information about you and the person you want protection from (the defendant)
  • ​​​​​​the name of the defendant
  • the address of the defendant, if known
  • the date of birth of the defendant, if known
  • the relationship between you and the defendant, for example, neighbour or de facto spouse
  • how long you have been in the relationship, if applicable
  • the names and dates of birth of any children you and the defendant have together or who live with you
  • whether any AVOs or other orders have been made in the past to protect you from the defendant
  • whether the defendant has ever been charged or convicted of any domestic violence offences
• information about any incidents
  • ​whether there has been any violence or threats towards you and/or your children in the past
  • any recent incidents, including places, dates, what you saw, heard, said and did
  • details of any reports or statements made to the police, including any event numbers
  • details of any doctors reports or treatment by a doctor or hospital relating to any injuries caused by the defendant
  • evidence of any damage to property
• ​ other useful information
  • ​the defendant's use of alcohol or drugs, if known 
  • the defendant's access to firearms or other weapons, if known
  • whether there are any mental health issues
• i​nformation about how you feel
  • if you fear the​​​​ defendant
  • if you scared for your safety

If you write about a conversation you should:

• use the exact words that the person said, including swear words
• set out conversations in speech marks
• use the words that were spoken. If you can’t remember exactly what was said you should add the phrase "words to the effect of".

For example:

I​ walked over to the defendant and said "You can't talk to me like that". He said "Shut-up, you're lazy and useless".

OR​​

I walked over to the defendant and said "You can't talk to me like that". He said words to the effect of "Shut-up, you're lazy and useless". 

You must finish the statement by stating that everything you have written is the truth, for example:

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.

You then need to sign and date the statement, for example:

Signed: E. Smith
Dated: 17 December 20XX

​You must also have a witness sign and date the statement, for example: ​

Signed: A. Lagi
Dated: 17 December 20XX ​

There are three types of subpoenas:

• Subpoena for production - this is a court order that requires a person to produce documents
• Subpoena to give evidence - this is a court order that requires a person to attend a hearing to give evidence. You would use this form to get a witness to attend the hearing.
• Subpoena for production and to give evidence - this is a court order that requires a person to produce documents and attend a hearing to give evidence. You would use this form if you wanted someone to produce documents and give evidence at the hearing.

You need one form for each subpoena.

You can get subpoena forms from:

• your nearest Local Court registry, or
• the Forms page on the Local Courts website.

You should address the subpoena to the witness you want to attend or the person you want to produce documents. 

If you want to get documents from an organisation or company, you should:

• address the subpoena to the 'Proper Officer'
• include the registered address of the organisation or company.

If you are filling out a Subpoena for production, it is important that you clearly describe the documents or things the person needs to produce to the Court. If your request is too vague or broad, the person might object and the Court might order that the person doesn’t have to comply with the subpoena.

Instructions: Instructions for completing a Subpoena for Production

Sample: Sample Subpoena for Production

Instructions: Instructions for completing a Subpoena to Give Evidence

Sample: Sample Subpoena to Give Evidence

Instructions: Instructions for completing a Subpoena for Production and to Give Evidence

Sample: Sample Subpoena for Production and to Give Evidence

Sometimes, you might need to apply for an extension of time for the service of a subpoena. For example, you find out about new evidence a few days before your hearing date and you don’t have time to comply with the standard rules.

A court may order short service if it is satisfied that it is in the interests of justice to do so. Any order made for short service must be attached to the subpoena and served.

To apply for an order for short service, you will need to complete:

• a Notice of Motion, and
• an Affidavit in support of your application.

You can get blank copies of these forms from:

• your nearest Local Court registry, or
• the Uniform Civil Procedure Rules Civil Forms website.

You can file your subpoena in person, by post, fax or email. 

You need to file three copies of each subpoena.

You don’t have to pay a fee to file a subpoena.

A court may order short service if it is satisfied that it is in the interests of justice to do so. Any order made for short service must be attached to the subpoena and served.

The Court will fill in the date that the documents have to be provided by and/or the date to attend the hearing. The Court will also fill in the last date for service.

Instructions: Instructions for completing a Notice of Motion for short service of a subpoena

Sample: Sample Notice of Motion for short service of a subpoena

Instructions: Instructions for completing an Affidavit in support of short service

Sample: Sample Affidavit in support of short service

The subpoena must be served on (given to) the person it is addressed to on or before last date for service.

A person doesn’t need to comply with a subpoena if it is served after the last date for service.

You can pay for a professional process server to serve the subpoena or do it yourself.

You can serve a subpoena by:

• handing it to the person it is addressed to
• emailing it to them, or
• posting or faxing it to their residential address.

When you serve the subpoena you must also give the person or organisation you are serving conduct money. Conduct money is money paid to a person who receives a subpoena to cover the cost of producing the document(s) or going to court.

There is no specific amount of conduct money you must give for a subpoena to produce but must be reasonable. Many organisations will have a set amount for conduct money. You should contact the organisation before serving the subpoena to make sure you provide enough conduct money.

The amount to be given for a Subpoena to Give Evidence should not be less than $50.05 (as at July 2014). This amount covers the cost of the witness travelling to attend court.

The person who served the subpoena needs to fill out and signed the Statement of Service at the bottom of the subpoena.

Their signature must be witnessed.

The return of subpoena date is the day the Court has ordered for the person or organisation in the subpoena to:

• bring the documents to court, or
• attend to give evidence.

It is written on the subpoena.

The documents requested under a Subpoena for Production can be posted to the Court but they must arrive by the return date.

On the return date, you should go to the court registry and ask for leave (permission) to look at and/or make copies of the documents. Sometimes the Registrar can give you access and sometimes you may need to ask the Magistrate for leave to look at and/or make copies. You usually can't take the produced documents away from the courthouse without a court order.

If the Court has given you leave to look at and/or copy the documents, you can do this on the return date or come back on another day.

You should check with the Court how much they will charge to make photocopies of the documents if you have been given permission to copy them.

If the person or organisation that has been served with the subpoena can't find the documents you are asking for, they will need to tell the Court that they haven't been able to find the documents.

The person the subpoena is addressed to may object to providing the documents or attending to give evidence. They can ask the Court to set aside the subpoena. If this happens, you will be served with a copy of their application and get a chance to explain to the Court why you need the documents and/or witness and how they are relevant to your case.

If a witness does not comply with a subpoena, the Court may issue a warrant for their arrest and have them brought before the court. ​

If the police were called to any incident involving you and the defendant, you may be able to get a copy of the Police Incident Report or a summary of the incident from the NSW Police.

You will need to fill out an Informal Access Application form. There is no fee for this application. You can get a copy of the form from the NSW Police Force website.

You should then complete the application and send it to:

NSW Police
Information Access and Subpoena Unit
Locked Bag 5102
Parramatta NSW 2124

Don't forget to keep copies of everything that you file and serve on the applicant. You should also make a note of the date that you filed, posted or delivered any documents.

If you are unsure about what evidence you need, you should get legal advice.