When do you need to attend court?
Your court date, what actually happens on the day, what to do if you cannot attend, and how to ask for more time.
2.1The date is not negotiable on its own
Start here
The date and time on your CAN are a court order. You cannot move them by phoning the courthouse, emailing the officer in charge, or turning up on a different day because it suited you better. The only ways the date changes are the ones described in this lesson: you attend and ask the court for an adjournment, or in limited circumstances you make a written application before the day.
Put the date in your phone now, with a reminder the week before and the day before. Then plan how you will get there and how long it will take. Local Courts start at 9:30 am and the list is called from then. Arriving at 10:15 because of traffic is a bad way to begin.
2.2What a mention is
Your first date
For nearly everyone charged with possess prohibited drug, the first court date is a mention. A mention is a short administrative appearance. The court wants to know three things: that you have turned up, whether you have a lawyer or intend to get one, and how you intend to plead. It is not your sentence hearing and it is not a hearing of the evidence. Nothing about guilt is decided at a mention unless you choose to plead guilty and ask to be sentenced then and there.
On the day you register your attendance with the court officer, wait in or near the courtroom until your name is called, and then go to the bar table. The whole exchange usually takes two or three minutes. Module 4 covers exactly what to say and how to carry yourself. What matters here is the decision you need to have made before you walk in: are you ready to enter a plea, or do you need time?
You are allowed to need time. Most self-represented people at a first mention ask for an adjournment, and for a first request on a charge like this one the court will almost always grant it. The next section explains how.
Legal basis: Criminal Procedure Act 1986 (NSW) Chapter 4 Part 2 (summary proceedings in the Local Court); Local Court Practice Note Crim 1 (case management of criminal proceedings). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
2.3Asking for an adjournment
More time
An adjournment is the court putting your matter off to a later date. You ask for one at the mention. You do not need a form and you do not need a lawyer. You need a reason the court accepts, and for a first mention the reasons below are accepted every day.
You want to get legal advice. You are waiting for the facts sheet or want to read it properly. You have written to police asking them to withdraw or amend the charge and are waiting for a reply (Lesson 5). You have enrolled in a program and want to complete it before sentence (Lesson 14). You are gathering references (Lesson 12). Any one of these is enough. Say it plainly and say how long you need. Four to six weeks is a normal first adjournment. Asking for three months at a first mention invites questions.
Your Honour, this is my first appearance. I am representing myself at this stage. I would ask for an adjournment of four weeks so that I can obtain legal advice and prepare my matter.
The Judge may ask whether you intend to plead guilty or not guilty. If you have not decided, say so: "I have not yet decided how I will plead and would like to obtain advice before I do." The court will usually note that and give you the date. If you have already decided to plead guilty and want the time to prepare for sentence, say that instead, because it tells the court you are using the time productively.
A second adjournment is harder and a third is harder again. The court expects progress between dates. If you come back in four weeks with nothing done and ask for another four, you may still get it, but you will have spent goodwill you might need later. Use the time.
2.4If you cannot attend
Before the day
If something genuine prevents you attending, illness, a death in the family, being interstate for work booked before the CAN was served, you have two options, and doing nothing is not one of them.
The first is to have someone attend for you. A lawyer can appear and ask for the adjournment on your behalf. A friend or family member cannot represent you, but if they attend and hand up a letter and a medical certificate explaining your absence, the court will usually adjourn rather than proceed. The second is to write to the court registry before the date, attaching the medical certificate or other evidence, and ask that the matter be adjourned. Registries are inconsistent about this. Phone the registry the day you send it to confirm it was received and ask whether the court will deal with it on the papers.
For some summary offences the law also allows you to enter a plea of guilty in writing without attending. This is not a good idea for a drug charge, because you lose the chance to put your case for a non-conviction outcome, and the court sentences you on the police facts alone. Attend.
A phone call is not enough
Telling the registry by phone that you cannot come does not stop the court proceeding without you. Put it in writing, attach evidence, and confirm receipt. Keep a copy of everything.
Legal basis: Criminal Procedure Act 1986 (NSW) s 182 (written pleas). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
2.5If you miss the date
Consequences
If you do not attend and the court has no explanation, it can proceed in your absence. For a possess prohibited drug charge that usually means the court finds the offence proved on the police facts, records a conviction and imposes a fine. You will find out by letter, sometimes weeks later, and by then a conviction is on your record.
That outcome can be undone. You can apply to the Local Court for an annulment of the conviction, which puts the matter back on the list as if the absence had not happened. The application must be made within two years, and you need to show you were not aware of the proceedings or were unable to attend for a good reason. Annulment applications are granted fairly readily for a first absence with a real explanation, and refused for people who simply did not turn up.
If you were on bail, missing court is a separate criminal offence of failing to appear, and the court can issue a warrant for your arrest. Police then come to find you. This turns a charge that most people walk away from without a conviction into two charges, one of which goes to your reliability. If you have missed a date, do not wait for the warrant. Go to the courthouse the next morning and ask the registry what to do.
Legal basis: Criminal Procedure Act 1986 (NSW) ss 190 to 199 (proceeding in the absence of the accused); Crimes (Appeal and Review) Act 2001 (NSW) Part 2, s 4 (application for annulment within two years); Bail Act 2013 (NSW) s 79 (failing to appear). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
2.6Planning the day
Practical
Work out which courthouse it is and look up the address. Local Courts with similar names exist, and Downing Centre and the John Maddison Tower are on different streets. Check parking or public transport and allow for security screening at the entrance. Aim to be inside the building by 9:00 am.
Bring the CAN, any bail paperwork, photo identification, a pen, and if you have started them, the documents from Module 3. Dress as Lesson 16 describes. Tell your employer you need the morning, and if you are being honest with them about why, Lesson 28 covers how a conviction interacts with work.
Write the courthouse address, the time you need to leave home, and the words from section 2.3 on one page. Put it with your CAN.
If you have already missed a date
A warrant or a conviction in your absence changes the order in which things need to happen. An annulment application has its own form and its own hearing, and a failing to appear charge is dealt with alongside the original matter. If either applies to you, a consultation with the lawyers who built Standard before you next go to court is worth having.
Request a consultation