Australia: Will my case be dismissed if the alleged victim fails to attend court?

A question criminal defence lawyers are often asked is, will my criminal charges be thrown out of court if the complainant (also known as the 'alleged victim') fails to turn up to the defended hearing?

Answering this question can raise both ethical and legal issues for lawyers, as it is important that a lawyer never suggests or even implies that a complainant should fail to comply with a court order, such as a subpoena to attend court.

Doing so has the potential to amount to professional misconduct or even the offence of attempting to pervert the course of justice.

In fact, a complainant who has been served with a subpoena to attend court is legally required to attend, and failing to do so can amount to a criminal offence in and of itself.

That said, the short answer to the question is that the court has three main options when a complainant fails to attend a defended hearing (which is day witnesses attend court to testify and the magistrate determines whether or not the defendant is guilty):

1. Adjourn the proceedings to enable to complainant to attend on the next occasion,
2. Adjourn the proceedings and issue a warrant for the complainant's arrest, or
3. Dismiss the proceedings (ie throw the case out of court).

In reaching that decision, the court will can into account a range of factors, which may include

• The seriousness of the charges,
• Whether the complainant has been served with a subpoena and, if not, why this has not occurred,
• Whether the complainant is likely to attend on the next occasion, and
• The importance of the complainant's evidence to the case.

If the complainant fails to attend, the prosecution will normally apply for an adjournment - in other words, apply for the hearing to be relisted on a future date.

The prosecution will normally make this application because it can be extremely difficult - and in many cases impossible - to prove an offence beyond a reasonable doubt without the main witness being present in court, as his or her statement to police is considered to be hearsay and is not normally admissible in court.

It will be especially difficult to establish proof where there is an absence of other material witnesses - such as in many assault cases and apprehended violence order applications.

Once the adjournment application is made, the magistrate will normally ask the prosecutor whether the complainant has been served with a subpoena and, if not, the reason for this not occurring.

The magistrate may take verbal submissions regarding whether the complainant is likely to attend court on the next occasion, in the event the adjournment were granted.

If the case is adjourned, the hearing will be 'vacated' and relisted on a future court date.

The second option available to the magistrate is to adjourn the proceedings and issue a warrant for the complainant's arrest, if he or she was validly served with a subpoena to attend court.

Before exercising this option, the magistrate will usually ask the prosecutor for evidence the complainant was validly served.

That evidence will normally come in the form of an 'affidavit of service' which describes when, where and how the subpoena was served on the complainant.

In the event a warrant is issued, the complainant may be arrested and brought before a court. 

The third option is for the magistrate to dismiss the charges and/or any applications, such as an application for an apprehended violence order.

In the normal course of events, once a prosecutor's application to adjourn the proceedings is refused, he or she will 'offer no evidence' and the charges will then be dismissed.

It is important for criminal lawyers who are representing defendants to ensure no evidence is offered, rather than the proceedings merely being withdrawn, as offering no evidence means the rule against double-jeopardy is activated - which prevents a future prosecution based on the same allegations.

So, there you have it - a thumbnail sketch of the options that may be exercised in the event the complainant fails to attend a defended hearing.

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.