Absent witnesses: A taboo subject?
Criminal lawyers are loath to discuss the subject of what happens when a witness fails to attend court in a criminal prosecution against their client. This is because when a witness does not attend court, especially in domestic violence cases, criminal lawyers, like police and the courts, are conscious that there is a risk of witness interference between spouses.
It is extremely common that a person who makes a complaint to the police against their spouse will later want the prosecution discontinued. The police will very rarely withdraw charges or an Apprehended Violence Order. The consequence of this is that a witness will often take matters into their own hands and refuse to attend court despite being subpoenaed and legally required to do so.
What happens to an accused person if a witness does not attend court?
If the police have no witnesses because they fail to attend court, they will, in most circumstances, be unable to prosecute the case against an accused person.
The reason for this is that the police are typically prohibited from relying on a statement previously given by a witness if the witness is not present because it is hearsay.
This means there is no evidence to prosecute an accused person, and the charges charges will usually be withdrawn by police or dismissed by the courts.
What happens to a witness who does not attend court?
When a prosecution witness fails to attend a hearing, a prosecutor may do the following:
- Withdraw the criminal charges or apprehended violence order.
- Request that the hearing be adjourned to allow the witness a chance to attend on another date.
- Apply for a warrant for the arrest of the witness.
- Attempt to tender a witness statement without a witness being present under an exception to the hearsay rule.
Withdrawal of charges/AVOs
If the criminal charges and/or AVO are withdrawn, then the criminal prosecution is terminated.
Adjournments
If the prosecution seeks an adjournment, a magistrate or judge has the power to grant or refuse the application. This decision involves balancing the accused’s right to hear charges without delay against the prosecution’s right to present its case.
The following factors are relevant to the decision:
- Whether the application is opposed.
- If the witness has given an explanation for not attending court.
- If the witness has given an explanation, the reasonableness of the explnation.
- The likelihood of the witness attending on the next occasion.
- The effect of refusing the adjournment on the prosecution case.
- The seriousness of the charges.
- Whether the accused person is in custody or on bail.
- The age of the matter.
- Financial cost to the accused.
Warrants
The prosecutor may request an arrest warrant for the witness to attend court.
Magistrates have the power to issue a warrant for the arrest of a witness who does not attend court where:
- A subpoena was issued for the witness’s attendance; and
- All requirements for subpoenas were complied with; and
- The witness has not complied with the subpoena; and
- No just or reasonable excuse has been offered for the failure to comply.
Hearsay
If a witness does not attend court the prosecution can attempt to tender the witness’s statement under an exception to the hearsay rule.
Whilst there are exceptions to the hearsay rule, it is very rare for the courts to allow this to occur, or for the police to even attempt this course due to the inherent unfairness to an accused person in not having a witness available to cross-examine and challenge.
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