Section 196 of the Criminal Procedure Act 1986 (NSW) permits the court to proceed to hear and determine a case in the absence of the accused person if the accused person fails to attend court on the court hearing date. The court can only do this if the accused person has been given notice of the hearing date with a court attendance notice outlining the court date, time and location, yet the accused person fails to attend court, and if the court is satisfied that the accused person had reasonable notice of the date, time and place of the hearing date.
The case of McKellar v DPP (2014) NSWSC 459 is a leading authority case experienced criminal lawyers are familiar with that allows a person accused of a crime (an accused person) to be absent from court if otherwise a lawyer is present in court for the accused person. This permits the court to begin hearing the evidence. However, a lawyer who represents a client who is absent in court must be careful to do so and should assess the ethical issues arising.
McKellar's case involved a woman (Ms. McKellar) charged with larceny who failed to attend the Dubbo Local Court that was listed for hearing on 27 June 2013 but was otherwise represented by her lawyer being present in court on her behalf.
Her lawyer was refused an adjournment by the Magistrate after requesting it at court when her client Ms. McKellar failed to attend court. Her lawyer asked the Magistrate to adjourn the hearing because Ms. McKellar who lived in Sydney was unable to attend Dubbo for the hearing day due to the very recent termination of her Centrelink benefit payments.
The Magistrate then proceeded to deal with the case in Ms. McKellar's absence under section 196 of the Act. As a consequence she was convicted in her absence- meaning that she received a criminal conviction against her name.
The case was appealed to the Supreme Court of NSW where the Supreme Court found that the Local Court Magistrate made an error in dealing with the case under section 196 in the absence of the accused person in circumstances there was a lawyer present representing the accused.
Section 196 which otherwise allows the court to deal with and convict an accused person in their absence in court did not in fact apply here because, as the Supreme Court held, in this case Ms. McKellar was represented by an Australian legal practitioner (lawyer) pursuant to section 36 of the Criminal Procedure Act 1986 (NSW). The accused was therefore not considered absent, instead the court said that she was considered present through her lawyer's presence in court.
A further reason for this decision is found in section 3 of the same Act, which says that the meaning of an "accused person" includes, in relation to summary offences (charges dealt with in the local court only), a defendant and, in relation to all offences (where the subject-matter or context allows or requires), an Australian legal practitioner representing an accused person.
The Supreme Court on the appeal of this case said that the local court Magistrate should have proceeded with the hearing of the case, which includes hearing the evidence available before determining to convict the accused in her absence.
The appeal court also said that instead of the court being required to hear all the evidence in the event that it proceeded to hearing, the Magistrate could instead deal with the case by considering the Court Attendance Notice and outline of the police facts sheet without reviewing or looking at the evidence, pursuant to section 199(2) of the Act, before convicting the accused person in her absence.
Section 199(2) permits the court to do this if it is of the opinion that the matters set out in the Court Attendance Notice are sufficient to establish the offence.
Section 202 of the Act states that in the case of a case heard in the absence of an accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing. Section 25 of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits the court to issue a warrant of arrest for absent defendants/accused persons so that they may be brought before the court for sentencing where an imprisonment sentence is to be imposed or is contemplated. Section 62 of the Crimes (Sentencing Procedure) Act 1999 (NSW) also allows the court to issue a warrant of commitment after sentencing.
In summary, an accused person who is absent on their hearing day in the local court in New South Wales can still have their hearing proceed in their absence if their legal representative is present in court on their behalf. An accused person who does not have a lawyer present in court while the accused person is absent on their court hearing day will find themselves in the situations outlined earlier, namely, the court can deal with their case and convict them in their absence under section 196 of the Criminal Procedure Act.
A lawyer in such a situation may either seek leave from the court to withdraw from the case or continue representing the client and proceed to hearing or sentence or only remain in the case to a limited extent of being heard on issues of adjournment and arrest warrants.
Pit Falls to Consider for Criminal Lawyers When Representing an Absent Client | Legal Ethics
In the event a lawyer present in court decides to represent an absent client, detailed and informed instructions are required by the lawyer in order to cater for every single situation that could arise in the conduct of that hearing. This is an inherently difficult task because unforeseen events can arise during the conduct of a hearing in court.
Furthermore, the lawyer must be able to contact his or her client at short notice to be able to get informed instructions for unforeseen situations that may arise during the course of the hearing- a difficult and dangerous task for a lawyer to undertake.
A failure by a lawyer to obtain informed instructions from a client, in the sense of the client giving instructions after receiving the benefit of adequate legal advice, can amount to a breach of the solicitor's conduct rules and a risk of the lawyer being struck off of the roll (losing their licence to practice as a lawyer).
In contrast, the NSW Solicitors Rules 4.1.1 states that a lawyer must act in the best interests of their client in any matter in which the lawyer represents their client.
However if a lawyer's client fails to appear in court for the listed hearing date, yet the client's case has a strong defence- then that defence will be forfeited if the lawyer withdraws from the case due to their client's failure to attend court due to section 196 of the Criminal Procedure Act explained earlier- the client will end up being convicted on a finding of guilt by the court.
A lawyer will often withdraw from an absent client's hearing for the following reasons:
- A lawyer will not have proper instructions to continue representing an absent client in court in order to be able to properly conduct the hearing in the best interest of their client without possibly missing anything important that may arise in the course of the hearing that cannot always be anticipated or predicted. Sometimes, the client will need to give evidence in the witness box. An absent client cannot give that evidence in court. A failure to give evidence on important aspects of the case that may not have been important until the commencement of the hearing can result in a finding of guilty against the accused person. This means that the client has foregone the right to give evidence in their own hearing. It is therefore very difficult if not impossible for a lawyer to have full instructions for a hearing in the absence of a client.
- Section 4 of the Crimes (Appeal and Review) Act 2001 (NSW) allows an accused person who is convicted in their absence to reverse the court's decision and begin again. But if a lawyer continues to represent an absent client who ends up getting convicted by the court, the client will lose the right to use the section 4 annulment option.
- The above issues raise ethical hurdles and can result in breaches of the solicitor conduct rules eventuating in disciplinary action against the lawyer.
Can a Lawyer Ethically Remain in the Case Without Getting in Trouble?
A lawyer who appears in court for an absent client can remain in the case to a limited extent without potentially breaching any solicitor conduct rules while acting in the best interest of their client in one of two ways, namely:
- A lawyer can stay in the hearing only for purposes of appearing for their client to address the court on the issues of the client's failure to appear in court (and the issuing or an arrest warrant); adjournment application to try to adjourn the hearing to another court date; and the issue of whether the court should convict the client in their absence.
- A lawyer can stay in the hearing to the same extent as outlined in (1) but in the capacity as a 'friend' of the court, technically referred to as appearing on the record in court for the client as amicus curiae. The authority case on this is found in Williams v R [2012] NSWCCA 286.
Remaining in the case to the extent outlined above becomes more important if the client has good defence or the prosecution case is weak.
Here is more on how to check if a warrant is out for your arrest.
What Happens of a Client Doesn't Attend Court?
An accused person who fails to attend court on the allocated court date in circumstances he or she is required to in compliance with their bail conditions will amount to a breach of bail. As a consequence of the non-compliance of the bail conditions, an arrest warrant can be applied for to the court by police under section 77 of the Bail Act 2013 (NSW). Alternatively, a police officer may arrest an accused person and take him or her as soon as practicable before a court if the police believe on reasonable grounds that the accused person has failed to comply with or is about to breach their bail conditions.
A failure to appear in court in breach of a bail condition without reasonable excuse constitutes a criminal offence under section 79 of the Bail Act. This offence carries a maximum penalty amounting to the maximum penalty for the offence for which he or she was granted bail. However, the maximum penalty of imprisonment is not to exceed 3 years. A monetary penalty is not to exceed 30 penalty units ($3,300).
If the breach of bail condition is disputed by an accused person then the court will permit the accused person to go to a hearing on it for purposes of defending this allegation.
The court can issue an arrest warrant against an accused person in order for him or her to be brought before the local court to be sentenced in the event he or she is found guilty as a consequence of failing to attend court pursuant to section 25(2) Crimes (Sentencing Procedure) Act 1999 (NSW).
The local court is restricted on imposing a sentence against an absent accused person in the sense that it cannot impose a penalty if the court is to impose an imprisonment sentence, ICO, Community Corrections Order, Conditional Release Order, non-association order or place restriction order, or an intervention program order, according to section 25 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Furthermore, section 181(3A) of the Criminal Procedure Act 1986 (NSW) permits the local court Magistrate to issue an arrest warrant against an accused person if the court is satisfied there are substantial reasons to do so and it's in the interest of justice to do so if the accused person is not present on the day, time and place set down for the hearing of the case or he or she absconds from the proceedings.
An experienced criminal defence lawyer will bring the court's attention to the fact that the court is not required to issue an arrest warrant against an accused person who fails to attend without first considering an adjournment application in order to adjourn the case to another date to preserve the accused person's right to be tried fairly. The court' power to adjourn cases comes from section 197 and 40 of the Criminal Procedure Act 1986 (NSW)
A failure of an accused person to attend court listed for mention (not a hearing date) can also result in the court dealing with the case and convicting the accused person in their absence under section 190 of the Criminal Procedure Act 1986 (NSW) if a written plea of not guilty has not been lodged.
Lawyer Legal Definition
The legal definition of a lawyer in Australia is found in section 6 of the Legal Profession Uniform Law and means an Australian legal practitioner or an Australian-registered foreign lawyer who is an associate of a law practice. Section 261 also defines a lawyer as an Australian legal practitioner, Australian-registered foreign lawyer, an Australian lawyer who is not an Australian legal practitioner, or a former Australian legal practitioner, a former Australian-registered foreign lawyer or a former Australian lawyer. An Australian legal practitioner is defined as an Australian lawyer who holds a current Australian practising certificate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
