Failure to appear conviction quashed on appeal

It is a criminal offence for a Defendant in criminal proceedings to fail to appear in court unless they have a reasonable excuse to do so. A recent case which resulted in an acquittal of such a charge sheds light on the meaning of reasonable excuse for the purposes of s33 of the Bail Act 1980 (Qld).

Siegfried Etienne had been charged with common assault but failed to appear in court for a mention listed on 9 May 2017. A notice sent to Etienne’s old address after a previous adjournment had been returned unserved.  Although the prosecutor that day conceded that Etienne was not aware of the court date, he still applied for a warrant for his arrest and the court granted one.

On 26 May 2017, Etienne appeared in court and answered to the charge that he without reasonable cause had failed to surrender into custody at the Southport Magistrates Court. When asked to show cause why he should not be convicted, Etienne told the Court that he had not been informed and did not know of the court date of 9 May 2017. Etienne also pointed out that at an earlier court date on 20 March 2017 he had been told by the police that they would notify him of the next court date, and he was following those instructions. The Magistrate nevertheless convicted him, holding that he was under an obligation to call the court within a week to find out the next court date.

Etienne had self-represented during the proceedings. He had no prior criminal history and was later acquitted of the charge of common assault.

Etienne appealed the conviction for failing to appear based on new evidence confirming that he had informed the police of his new address on 7 March 2017.

Section 28A(4) of the Bail Act 1980 (Qld) provides that:

A court shall not issue a warrant under the section…

(b) where the hearing was adjourned in the defendant’s absence and the defendant was not represented by a lawyer (these conditions seem to satisfied in the present case); unless it is satisfied that –

(c) the defendant cannot be found, has absconded or is likely to abscond; or

(d) reasonable notice of the time and place so determined, or as the case may be, the time to which the hearing was adjourned has been given to the defendant

Section 33 of the Bail Act 1980 (Qld) provides that:

(1) A defendant who—

(a) fails to surrender into custody in accordance with the defendant’s undertaking; and

(b) is apprehended under a warrant issued pursuant to section 28 or 28A(1)(a), (b), (c) or (e);

commits an offence against this Act.

(2) It is a defence to an offence defined in subsection (1) if the defendant satisfies the court that the defendant had reasonable cause—

(a) for failing to surrender into custody in accordance with the defendant’s undertaking; and

(b) for failing to appear before the court specified in the defendant’s undertaking and surrender into custody as soon after the time for the time being appointed for the defendant to do so as is reasonably practicable.

On appeal to the District Court, Judge Kent QC DCJ expressed doubt that the requirements of Section 28A(4) of the Bail Act had been met because Etienne had not been present when the court date of 20 March had been adjourned.

Judge Kent QC allowed the appeal based on the new evidence that Etienne had informed the police of his new address on 7 March 2017 and also because the Magistrate’s view that weekly enquiries with the Court were necessary was “not reasonably justifiable”.

As a result, the conviction and the resulting fine were both set aside.

Author admin