Forgot your Court Date? There are still things you can do
If you do not attend Court, the Court can do a number of things:
Adjourn it to allow you to attend and notify you of the new Court date.
Deal with the matter in your absence.
Issue a ‘bench warrant’ for your arrest for you to be brought to Court.
If you do not attend Court, do not succumb to the ‘smelly fish in the bottom draw’ syndrome – because the longer you leave it and don’t address the problem, the worst it will become and the harder it will be to get rid of the problem, the smell!
Section 4 of the Crimes (Appeal and Review) Act allows for the Local Court to annul a conviction and or sentence imposed in your absence. There are four grounds that the Court will consider to annul a conviction and/or sentence:
If you were unaware of the original Local Court proceedings until after they were completed.
If you were hindered form attending Court due to accident, illness, misadventure or other extenuating circumstances
It is in the interests of justice to annul the order(s) because of the specific circumstances of your failure to appear.
If you want make a section 4 annulment application, it is imperative that it be done as soon as possible as the longer you wait before making the application, the less the likelihood of success – it is better to opt for a delay of days, rather than weeks or months. There is an overall time limit of 2 years from the date of the order.
The most important thing to know when making a section 4 annulment application is that evidence is paramount. As you could no doubt imagine, the Court would hear every excuse under the sun, probably including ‘the dog ate my Court Attendance Notice’, therefore you must be able to prove by way of evidence, the reason(s) why you did not attend Court.
If you did not attend Court because you did not receive the Court Attendance Notice (‘CAN’), you will first need to consider how the Court Attendance Notice was to be served (provided to you). There are multiple types of CANs:
Bail CAN – arrested, charged and placed on bail;
No-bail CAN – arrested and charged but not placed on bail;
Field CAN – charged at the scene and given the ‘yellow slip’;
Future CAN – charged and sent the CAN by mail.
In the case of a bail CAN, a no-bail CAN and a field CAN, it would be impossible to argue that you were unaware of the Court proceedings until after they were completed as you were personally handed the CAN. However, if it was a future CAN, it will be worth checking the address that the CAN was mailed to and ensuring that it is your current address. In the event that they are different – get evidence! Get evidence together to prove that you do not reside at the address listed on the Future CAN, for example rental agreements, driver’s licence, rate notices or any formal document showing your residential address.
Taking a different scenario, if you did not attend Court because illness, firstly, prevent the Court from dealing with your matter in your absence and contact the Local Court call centre before 9.30am on 1300 679 272 and follow that up with an email to the specific Local Court attaching a Doctors certificate evidencing that you are too unwell to attend Court.
If you did not let the Court know beforehand and you intend to rely on your illness as a basis for the section 4 application, it will be important to obtain evidence of the illness.
It is important to know that you cannot make a second section 4 annulment application without the Court granting ‘leave’ (i.e. permission) to do so. If you do not attend Court twice, there ordinarily needs to be a very good reason for the second occasion.
In short, if you know you will have difficulty attending Court on any given day (for a legitimate reason) contact the Local Court call centre before 9.30am and let them know, following that up with an email to the Court evidencing the reason for your absence.
However, if all else fails and a matter is dealt with in your absence, it is important that you contact a defence lawyer. Annulment applications can be troublesome especially if you do not have enough evidence and are not properly prepared. Also, the Court may have issued a Bench warrant for your arrest and a defence lawyer will assist you in resolving that issue amicably.
If you need advice from a criminal defence lawyer, contact one of our criminal law specialists immediately at either our Sydney or our Parramatta offices. We have particular experience in all types of criminal proceedings. Call 1800 NOT GUILTY or fill in our contact form and arrange a free conference with a solicitor today.