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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

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

You could also call this:

"You can ask for a new hearing if you were sentenced for a serious crime without being in court"

Illustration for Criminal Procedure Act 2011

If you are sentenced for a serious crime, called a category 1 offence, without being in court, you can ask for a rehearing. You can do this if you were supposed to be in court, but the hearing happened without you. You must ask the court for a rehearing, and you must do this within 15 working days of getting a notice about your sentence.

You need to give your application to the same court where you were sentenced. A judge will then look at your application and decide what to do. The court will also tell the prosecutor about your application, and the prosecutor can respond in writing.

The court can look at your application on its own or have a hearing to discuss it. The court might order a rehearing if you had a good reason for not being in court, and this is fair. If you did not know about the hearing, the court must order a rehearing. The court will make a decision based on what is fair and just.

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Topics:
Crime and justice > Criminal lawCrime and justice > Courts and legal help
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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."

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127: Registrar may deal with applications in relation to category 1 offences, or

"A Registrar can make decisions about some cases, even if it's not usually allowed, if the prosecutor agrees."

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

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

  1. A defendant who is sentenced for a category 1 offence, following a sentencing hearing at which the defendant was required by section 118 to be present but that proceeded in his or her absence, may apply to a court for a rehearing in relation to the sentence or order imposed on the defendant.

  2. The application—

  3. must be filed in the court in which the sentence or order was imposed; and
    1. must be filed no later than 15 working days after the date on which a notice is served on the defendant under section 124(4); and
      1. must be determined by the judicial officer who imposed the sentence or order or, if that is impracticable, any Judge.

        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 rehearing in relation to the sentence or order imposed on the defendant if the court is satisfied that—

        5. the defendant was notified of the hearing and had a reasonable excuse for non-attendance at the hearing, but that reasonable excuse was not known to the court at the time; and
          1. it is in the interests of justice.

            1. Despite subsection (6), the court must order a rehearing in relation to the sentence or order imposed on the defendant if the court is satisfied that the defendant was not notified of the hearing.