Can I Be Convicted in My Absence In The Magistrates Court? (WA) | Armstrong Legal

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This article was written by Courtney Ashton - Solicitor - Perth

Courtney holds a Bachelor of Laws and a Bachelor of Criminology and Justice from Edith Cowan University and a Graduate Diploma of Legal Practice from the College of Law. Courtney is a dedicated practitioner who enjoys a challenge and has competently completed many traffic and summary jurisdiction matters. Courtney enjoys advocacy and has appeared in a number of drink driving,...

Can I Be Convicted in My Absence In The Magistrates Court? (WA)


Lawyers are often asked the question of whether a person can be convicted of a criminal offence in their absence in the Magistrates Court. The short answer to this question is yes. This is known as an ex parte conviction. This article outlines when a person can be convicted in their absence in the Magistrates Court in Western Australia.

When can I be convicted in my absence?

Under section 55 of the Criminal Procedure Act 2004, the court can convict a person in their absence if the person has failed to appear in relation to a simple offence and the court is satisfied that they received a prosecution notice containing the charge and a Court Hearing Notice notifying them of the date the matter would be dealt with.

In this situation, the court may either adjourn the matter or hear and determine the charge in the defendant’s absence.

If the court convicts a person in their absence the Statement of Material Facts must be read aloud and the court will take as proved any facts that are stated.

What sentences can be imposed in my absence?

In practical terms, if the court convicts a person in their absence, this means that it may impose a fine on the person or disqualify their driver’s licence in their absence.

A court will not deal with a matter in a person’s absence if it is considering imposing a term of imprisonment.

Attend court if you can

Unless it is impracticable to do so, we would advise you to always attend court when you are summonsed to do so even if you know you will be pleading guilty. This will ensure that you are able to make submissions in relation to the sentence that is imposed and that you are aware of the outcome.

In some cases, the court may not wish to deal with a charge in the defendant’s absence. If this is the case, it is likely that the matter will be adjourned to a later date and a summons be issued for the defendant’s attendance.

If a person fails to attend a court event to which they are summonsed, a warrant may be issued for their arrest.

Can the conviction be set aside?

If a person is convicted of an offence in their absence, then they may apply to the court for an order setting aside the conviction. However, this application will only succeed in limited circumstances.

There are three grounds on which the court can set aside an ex parte conviction. These are:

  1. The person did not receive notice of the court date on which the conviction occurred; or
  2. The person did not receive such notice in enough time to appear on the court date; or
  3. The person did receive such notice in enough time to appear but did not appear for some good reason.

What is a good reason?

Whether a person’s reason for not attending court is a good reason is a very wide question and magistrates determine each case on its circumstances. The court must consider what the person’s subjective reason was for the failure to attend and determine whether that was objectively a good reason.

In addition to this, the court must consider case management principles and that generally, any attendance at court will involve some inconvenience to a person.

If you are unable to attend, we would advise that you attempt to put the court on notice that you will not be attending. This can be done by email or telephone. If your non-attendance is for a medical reason, you should ensure that you obtain a medical certificate.

Disqualification of Drivers Licence

If your licence is disqualified after you are convicted in your absence, and you make an application to set aside that conviction, the application may include an order that suspends the disqualification period.

Application Process

An application to set aside a decision must be made by lodging a Form 7 together with an affidavit setting out the grounds for the application.

The application must be lodged with the registry of the court that dealt with the charge. For example, if you were supposed to appear in Joondalup Magistrates Court and failed to do so and were convicted in your absence, your application would be lodged with the Joondalup Court House registry.

The application must be lodged within 21 days of the date of the conviction. If it is not, the supporting affidavit should seek leave to file out of time and supply a reason why the application was not lodged within time. There is also a filing fee (currently $134.50), with a reduced rate for eligible individuals.

Once your application is lodged with the court, the matter will be set down for a hearing. On that day, you should be ready to advise the Magistrate why you did not attend. If your application is granted, you may be resentenced, or your matter may be adjourned to a later date.

Alternatively, your application may be dismissed, and the conviction and any sentencing orders made will remain.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.  

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