Infringements

Infringements

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Apply for a rehearing

Apply for a rehearing

If your client did not attend the hearing when the fine was imposed, your client could apply for a re-hearing pursuant to section 88 of the Criminal Procedure Act.

Section 88 of the Criminal Procedure Act provides that where a sentence is imposed by the Magistrates' Court in a criminal proceeding on a person who did not appear in the proceeding, that person, or the informant on that person's behalf, may apply to the Magistrates' Court for an order that the charge be reheard.

Procedure for a rehearing

An application for a rehearing under section 88 must be filed using Form 18, Rule 31 of Magistrates' Court Criminal Procedure Rules 2009 (Notice of Intention) with a Magistrates' Court Registrar, who will prepare the appropriate documentation and ensure the application is listed.  There is no fee for a rehearing application in the criminal jurisdiction.  

Under section 89 of the Criminal Procedure Act, a Notice of intention must:

  • state the reason why the person on whom the sentence was imposed did not appear in the proceeding; and
  • be filed with the registrar at the venue of the Magistrates' Court at which the sentence was imposed.

Under section 90 of the Criminal Procedure Act, you must serve a copy of the Notice of Intention on the respondent (i.e. the informant) within seven days after filing the notice, in accordance with section 392 of the Criminal Procedure Act.

Under section 90 of the Criminal Procedure Act, once you have filed a Notice of Intention, the sentence (other than an order for the cancellation, suspension or variation of the driver licence of the person on whom the sentence was imposed) is stayed until:

  • the application for rehearing has been heard; and
  • if a rehearing is granted, the charge has been reheard.

If your client's licence was affected by the court case in their absence and they need to drive in the meantime, then you may apply to the Court for your client to be allowed to drive until the application is heard. An application to drive pending a rehearing application must be served on the informant at least seven days before the application is to be heard (section 89).

On an application under section 88, your client will have an automatic right to a rehearing (i.e. the Court must set aside the findings and orders made in the earlier proceeding and rehear the charge) (section 94), where:

  • the charge-sheet was served in accordance with section 394 (ordinary service) and the Magistrates' Court is satisfied that the charge-sheet was not brought to the notice of the applicant prior to the hearing of the charge; or 
  • the person applies for a rehearing under section 88 within 28 days after being served with a notice under section 87(4) of the Criminal Procedure Act (section 87(4) provided that if the Magistrates' Court sentences a person in their absence, the court must serve the person with written notice of the order of the court and their right to apply for a rehearing of the charge).

Otherwise, the Magistrate is not obliged to grant your client's application and therefore it is up to you to convince a Magistrate that there is a good reason why your client should have their case reheard.

 If your client fails to appear at the time fixed for the hearing of an application under section 88 and the application is struck out your client may reapply under that section only if they first obtain the leave of the Magistrates' Court (section 93 of the Criminal Procedure Act).

 We understand that it is the practice of the open court to accept applications for a rehearing for all court-imposed fines even if the fine was issued under the Infringements Act and was then referred to the open court by the Infringements Registrar.

Sentencing at a rehearing

If the application for rehearing is successful, keep in mind that the client will be sentenced for the original offence under the Sentencing Act.  Refer to Hearings in Open Court for more information about this process.

In some cases, the underlying offence may involve a criminal charge that Homeless Law does not have the expertise to defend.  If the client is pleading guilty, Homeless Law may be able to able to run mitigation arguments.  Another option is for Homeless Law to try to brief a criminal lawyer or pro bono counsel to appear.  Please contact the Homeless Law staff lawyers for assistance with a referral.