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Criminal Procedure Act 2011

General provisions - Conduct of proceeding - Powers of court when defendant does not appear

124: Procedure when hearing proceeds in absence of defendant

You could also call this:

"What happens if you don't show up to court and the hearing goes ahead without you"

Illustration for Criminal Procedure Act 2011

If you are supposed to be in court but you don't show up, the court can still hold a hearing without you. The court will follow the same rules as if you were there, but with some changes if needed. You can still be represented by a lawyer even if you are not in court.

If you are charged with a less serious offence, the court can make a decision about your case even if you are not there. The court can also sentence you if you are found guilty of a less serious offence. You will be told what happened in court and when you need to appear for sentencing.

If you want to appeal the decision, you must apply to the court within 15 working days of being told about the decision. You can be arrested and brought to court if you are liable to be imprisoned. The court will tell you what to do next if you are sentenced in your absence.

A statement that is used as evidence in court is treated as if it were given under oath. This means that if someone lies in a statement, they can be charged with perjury, which is a serious offence. You can find more information about perjury in section 108 of the Crimes Act 1961.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3360212.

Topics:
Crime and justice > Criminal lawCrime and justice > Courts and legal help
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123: Sentencing for offence in category 2, 3, or 4 not to proceed in absence of defendant, or

"You must be in court for the judge to decide your sentence for certain crimes."

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125: Retrial if defendant found guilty in his or her absence, or

"You can ask for a new trial if you were found guilty but not in court, if you have a good reason."

Part 5General provisions
Conduct of proceeding: Powers of court when defendant does not appear

124Procedure when hearing proceeds in absence of defendant

  1. A hearing at which the defendant is required by section 118 to be present may proceed in the absence of the defendant even if the defendant is not, or ceases to be, represented by a lawyer.

  2. If a hearing at which the defendant is required by section 118 to be present proceeds in the absence of the defendant,—

  3. the lawyer for the defendant may continue to represent the defendant; and
    1. all provisions that relate to the conduct of the proceedings continue to apply, with any necessary modifications; and
      1. if the offence charged is a category 1 offence, evidence of a fact or opinion that would be admissible if given by oral evidence, is also admissible if given by way of an affidavit or a formal statement; and
        1. the charge against the defendant may be proceeded with up to and including,—
          1. in the case of a category 1 offence, sentencing (unless section 119(4) or (5) applies); or
            1. in any other case, delivery of the decision or verdict of the Judge or jury.

            2. If a person is found guilty in his or her absence at a hearing at which the defendant is required by section 118 to be present, the court may—

            3. direct that a notice be served on the defendant advising the defendant—
              1. that he or she has been found guilty in his or her absence; and
                1. of the date on which he or she must appear for sentencing; and
                  1. that, if he or she wishes to apply for a retrial under section 125, the application must be filed no later than 15 working days after the date of service of the notice; or
                  2. if the person is liable on conviction to a sentence of imprisonment, issue a warrant to arrest the defendant and bring him or her before the court for sentencing.

                    1. If a person is sentenced in his or her absence for a category 1 offence at a hearing at which the defendant was required by section 118 to be present, the court may direct that a notice be served on the defendant advising the defendant that—

                    2. he or she has been sentenced in his or her absence; and
                      1. if he or she wishes to apply for a rehearing under section 126, the application must be filed no later than 15 working days after the date of service of the notice.

                        1. A formal statement admitted as evidence under subsection (2)(c) is to be treated as evidence on oath given in a judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).

                        Notes
                        • Section 124(2)(d)(i): amended, on , by section 34 of the Courts Matters Act 2018 (2018 No 50).