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Criminal Procedure Act 2011

General provisions - Conduct of proceeding - Retrial or rehearing if defendant found guilty or sentenced in his or her absence

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

You could also call this:

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

Illustration for Criminal Procedure Act 2011

If you are found guilty of a crime and you were not in court for the trial, you can ask the court to have another trial. You must ask the court within 15 working days of being told about the guilty verdict or of being brought to court. The court will look at your request and might have a hearing to decide what to do.

You need to give the court a good reason for not being at the first trial, and the court must think it is fair to have another trial. The court can also decide to have another trial if you have a good defence that could have worked if you were at the first trial. If the court thinks you did not know about the first trial, it must have another trial.

When you ask for another trial, you must tell the court what you plan to say to defend yourself and who you plan to call as witnesses. The prosecutor will be told about your request and can respond to it. The court can then decide what to do with your request, and it might have a hearing to help make its decision. If you give a false statement to the court, it can be treated as a serious crime under the Crimes Act 1961, specifically section 108 which is about perjury.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3865749.

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126: Rehearing if defendant sentenced for category 1 offence in his or her absence, or

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Part 5General provisions
Conduct of proceeding: Retrial or rehearing if defendant found guilty or sentenced in his or her absence

125Retrial if defendant found guilty in his or her absence

  1. A defendant who is found guilty following a trial that proceeded in his or her absence may apply to a court for an order granting a retrial of the charge.

  2. The application—

  3. must be filed in the court in which the defendant's trial was held; and
    1. must be filed no later than 15 working days after the date on which—
      1. a notice is served on the defendant under section 124(3)(a); or
        1. the defendant appears in court pursuant to a warrant issued under section 124(3)(b); and
        2. must be determined by the judicial officer who presided over the trial or, if that is impracticable, any Judge.

          1. If the application is on the ground described in subsection (7)(b), it must be supported by—

          2. an outline of the defence on which the defendant intends to rely if a retrial is granted; and
            1. a formal statement from each witness who the defendant intends to call.

              1. The Registrar of the court must cause a copy of the application to be served on the prosecutor.

              2. The prosecutor may file a written response to the application no later than 15 working days after being served with a copy of it.

              3. The court may consider the application on the papers or at an oral hearing.

              4. The court may order a retrial of the charge if—

              5. the court is satisfied that—
                1. the defendant was notified of the trial and had a reasonable excuse for non-attendance at the trial, but that reasonable excuse was not known to the court at the time of the trial; and
                  1. it is in the interests of justice; or
                  2. regardless of whether the defendant had a reasonable excuse for non-attendance, the court is satisfied that the defendant had a defence that would have had a reasonable prospect of success if he or she had attended the trial.

                    1. Despite subsection (7), the court must order a retrial if satisfied that the defendant was not notified of the trial.

                    2. A formal statement provided to the court in accordance with subsection (3)(b) 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).