Witnesses: What happens when they don’t turn up?

Everyday in the local court, charges are dismissed when witnesses don’t attend court.

Firstly, if you have pleaded not guilty and intend to defend your charge or charges, hoping that witnesses don’t attend for the hearing is a very poor defence. There are better and more reliable ways to defend a matter.

Summary hearings

When a person pleads not guilty to a charge (or charges) in the local court, the charge will be listed for a summary hearing. At a summary hearing, all relevant witnesses ought to be subpoenaed by the police. If a witness is subpoenaed, they must attend court and give evidence.

If all the witnesses attend court and give evidence, the court will, after hearing all the evidence, decide whether the defendant is guilty or not. Each charge must be proven beyond a reasonable doubt. If the charge is proven, the court will impose a penalty; if it is not proven, the charge will be dismissed.

Witnesses may not attend court for any number of reasons; they may be sick and unable to attend, they may not be aware of the court date because they weren’t subpoenaed, or many other reasons, but what happens when a witness doesn’t attend court?

The most common scenarios

1. If there is no prejudice to the defendant, the police may proceed with the hearing without calling the witness to give evidence.
2. If there is prejudice to the prosecution case, the prosecutor may apply to adjourn the matter to another date to allow the witness to attend. If the application to adjourn is refused, the prosecutor may seek leave of the court to withdraw the charge.
3. The prosecutor may also seek leave to withdraw the charge without applying for an adjournment.

Witnesses in a local court hearing usually fall into one of two categories: civilian or police. Civilian witnesses will often be victims of crime (allegedly) or eyewitnesses. Police witnesses usually give evidence of the investigation, including recorded interviews with suspects, photographs of injuries, crime scene photographs, etc.

In a summary hearing, civilian witnesses are usually relied on to give direct evidence in support of the charge or charges. Without this evidence, many prosecutions have no reasonable prospects of success. By contrast, a police officer's evidence may be repetitive or interchangeable with that of other officers.

For these reasons, it is more likely that the scenarios described (1-3) will arise when a civilian witness does not attend court. 

Remember, as with the decision to lay the charge at the beginning, the decision to withdraw the charge also lies with the police.

If you need legal advice, don't leave it to the last minute. Contact us today.